If asked if North Carolina has a speedy trial law, until relatively recently, I would have said no. A defendant does have constitutional rights to a speedy trial under the Sixth Amendment to the U.S. Constitution and Art. I, Sec. 18 of the N.C. Constitution, as well as due process rights under the Fourteenth Amendment. However, North Carolina’s dedicated speedy trial statutes (G.S. 15A-701 through 710), which established a timeframe in which criminal cases must be tried, were repealed in 1989.
In teaching and consulting on calendaring here at SOG, I encountered a speedy trial statute I was not familiar with during my years of practice. The statute, G.S. 15-10, is rarely invoked. It reads as follows:
§ 15-10. Speedy trial or discharge on commitment for felony.
When any person who has been committed for treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer in open court to be brought to his trial, shall not be indicted some time in the next term of the superior or criminal court ensuing such commitment, the judge of the court, upon notice in open court on the last day of the term, shall set at liberty such prisoner upon bail, unless it appear upon oath that the witnesses for the State could not be produced at the same term; and if such prisoner, upon his prayer as aforesaid, shall not be indicted and tried at the second term of the court, he shall be discharged from his imprisonment: Provided, the judge presiding may, in his discretion, refuse to discharge such person if the time between the first and second terms of the court be less than four months. (1868-9, c. 116, s. 33; Code, s. 1658; Rev., s. 3155; 1913, c. 2; C.S., s. 4521.)
The statute is rather old, dating from 1868. When large swaths of Chapter 15 were repealed with the passage of the Criminal Procedure Act in 1973, G.S. 15-10 was preserved. Thus, despite infrequent enforcement, it remains the law, and it may be an underutilized tool for defenders.
What does the statute do?
The statute establishes a right to release from custody in certain circumstances in which the state does not indict or try a case within a particular timeframe.
Unlike more familiar Sixth Amendment speedy trial rights, the statute does not provide for dismissal of charges as a remedy. See Barker v. Wingo, 407 U.S. 514, 522 (dismissal only possible remedy for violation of constitutional right to speedy trial). And unlike the statute of limitations for misdemeanors, the statute does not bar prosecution where a certain period of time has passed after an incident occurs without charges being brought. See G.S. 15-1; State v. Hardin, 20 N.C. App. 193, 194 (1973) (“In North Carolina, there is no statute of limitations barring the prosecution of a felony. [N.C. Gen. Stat. § 15-10] merely provides that under certain circumstances the State must release from custody a defendant who has not been speedily tried”); see also State v. Webb, 155 N.C. 426, 429-30 (1911) (“the effect [of G.S. 15-10] is to require simply that the prisoner be discharged from custody, and not that he go quit of further prosecution”); State v. Lowry, 263 N.C. 536, 543 (1965) (“G.S. 15-10 is for the protection of persons held without bail” and did not apply where the defendants had been released on bail and were “at large” during the pendency of the case). G.S. 15-10 should also be distinguished from other statutes setting timeframes for various proceedings for those detained within and without the state. See 136.3 Speedy Trial Issues, NC Prosecutors’ Resource Online (discussing G.S. 15A-711, 15-10.2, and 15A-761).
What is the timeframe set forth in the statute?
First, a defendant must invoke the statute. The demand must be made “in open court.” To ensure that demand is made properly, it would appear prudent to both file a written demand pursuant to G.S. 15-10 and make an oral invocation in open court.
Then, the state must obtain an indictment during the subsequent term of court. If the defendant has not been indicted during the subsequent term of court, the defendant is to be released from custody, unless “it appear on oath” that the witnesses needed to procure the indictment were unavailable. G.S. 15-10.
The statute further requires the defendant be released if he is not indicted and tried by the second term following demand, provided that four months have passed between the first and second terms.
Readers may be taken aback by the timeframe set forth in the statute, given modern practice in which defendants are regularly incarcerated while their felony criminal cases are delayed for months if not years.
But what is a “term” of court?
The meaning of “term” of court as used in the statute is not altogether clear. As Michael Crowell explains in his Superior Court Judges’ Benchbook Chapter, “Out-of-Term, Out-of-Session, Out-of-County,” the use of the word “term” has come to refer to the six-month assignment of a superior court judge to a particular district (citing to Beaufort County Board of Education v. Beaufort County Board of Commissioners, 188 N.C. App. 399, 407-10 (2008), reversed on other grounds, 363 N.C. 500 (2009)). But the word “term” was previously used interchangeably with “session” to refer to the approximately week-long period in which cases were called according to a particular trial calendar. To complicate things further, grand jurors also sit for “terms,” see G.S. 15A-622, and those terms last several months.
In State v. Webb, 155 N.C. 426 (1911), the defendant asserted his right under the statute (then codified as Rev. 3155) to be indicted and tried by the second term of court. The state was forced to make a motion to continue at the second session because their key witness was pregnant and confined to her home on doctor’s orders. The trial court denied the defendant’s motion for discharge under these circumstances, and the defendant sought immediate appellate review. Interestingly, on appeal, the North Carolina Supreme Court stated that the trial court’s ruling “seem[ed] to be erroneous,” but dismissed the appeal on procedural grounds, concluding that the defendant had no right to appeal from the interlocutory order and that the defendant should have filed a petition for writ of certiorari.
Importantly, the North Carolina Supreme Court in Webb appeared to use the word “term” the way we use the word “session” today, referring to a December term and a January term during which indictments may be returned or cases set for trial. Furthermore, the statute requires discharge only where at least four months have passed between terms, and thus the statute contemplates that terms may sometimes occur closer together in time. Given that other types of “terms” do not tend to occur more frequently than every four months and given the word’s usage in Webb, it appears that the most natural interpretation of the word as used in G.S. 15-10 is that it refers to what we would call a “session” today.
Is release from jail mandatory?
As for the provision requiring indictment during the first term following demand, the court appears to have some discretion, as setting the defendant “at liberty” is not required where the witnesses the State needs to indict the matter are unavailable.
However, as to the latter deadline, release from jail appears to be mandatory. The plain text of G.S. 15-10 states that if the defendant is not tried at the second term of court, he shall be discharged from imprisonment (as long as at least four months have passed between the first and the second terms following demand).
The caselaw supports the proposition that release from custody is required where the conditions are met. See State v. Hardin, 20 N.C. App. 193, 194, (1973) (G.S. 15-10 provides that “under certain circumstances the State must release from custody a defendant who has not been speedily tried” (emphasis added)); State v. Webb,155 N.C. 426, 429 (1911) (appearing to accept other states’ interpretation that “the law is peremptory in its requirements, and where a prisoner has brought his case within its provisions he is entitled to his discharge”).
There is some language in the case law implying that the defendant may not be entitled to discharge in all circumstances. In State v. Wilburn, 21 N.C. App. 140, 142 (1974), the Court of Appeals noted that the statute exists to protect those held without bail, and explained further, “[w]e feel that the remedy in G.S. 15-10 should also be available to the trial court in deserving situations when the defendant cannot make bail” (emphasis added). However, the court appeared to simply be opining that discharge should be available not only to those held without bond, but also to those unable to meet the monetary conditions required for release. It would not seem to comport with the purpose of the statute for defendants to be denied their statutory right because a court set a high unattainable bond rather than no bond at all.
How has the statute been applied?
In State v. Wilburn, 21 N.C. App. 140 (1974), the trial court appeared to apply G.S. 15-10 in ordering the defendant be released on personal recognizance if his case were not tried within 60 days of the court date following a speedy trial demand. On day 59, a Friday, the state called the case for trial, but asked to continue the matter to the following Monday, on which day the trial began. The defendant was convicted and complained of a violation of G.S. 15-10 on appeal. The Court of Appeals reaffirmed that G.S. 15-10 calls for release from jail under certain circumstances rather than dismissal, and noted that the remedy of release should also be available where a defendant cannot make bail. See Wilburn, 21 N.C. App. 140, 142. However, the appellate court did not directly address the failure of the trial court to release the defendant the Friday before the trial began, perhaps concluding that the violation was de minimis where the 60th day fell on a Saturday and trial began the next Monday. Importantly, though the trial court may not have followed through on its own order that the defendant be released if not tried within 60 days, a true violation of G.S. 15-10 does not appear to have occurred given that four months did not pass between the first and second terms following invocation of the right.
On the whole, the reasoning of the Wilburn case supports the proposition that the statute means what it appears to say, despite how rarely it is applied today.
Conclusion
G.S. 15-10 appears to have roots in a “two-term” statute derived from the Habeas Corpus Act of 1679. See Anthony Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan. Law R. 525, 532 n. 45 (Feb. 1975) (noting similar examples in Pennsylvania and South Carolina; the Pennsylvania statute appears to have been superseded, but the South Carolina statute is still on the books, see S.C. Code Ann. § 17-23-90).
As early as 1911, the North Carolina Supreme Court suggested that the statute may be in need of modernization:
The statute in question here was enacted in 1868, at a time when very few of our counties had court oftener than twice a year, and it is a suggestion worthy of consideration whether, under the changed conditions which now prevail, some safeguarded modifications of this legislation may not be desirable.
State v. Webb, 155 N.C. 426, 431 (1911).
Though G.S. 15-10 may be antiquated, it is still the law of the state. Defenders should consider asserting the right and seeking their client’s release in appropriate cases.