Summary
holding that a trial judge has the authority and sole responsibility to schedule hearings on post-conviction matters under N.C.G.S. § 15-217.1
Summary of this case from Simeon v. HardinOpinion
No. 22
Filed 6 November 1979
Criminal Law 91, 181 — application for post-conviction relief — authority to schedule hearing The district attorney does not have the authority and responsibility to schedule the hearing for an application for post-conviction relief (motion for appropriate relief); rather, the trial judge has the authority and sole responsibility to schedule such a hearing. G.S. 15-217.1.
ON petition for a writ of certiorari by the State from the order of Riddle, S.J. at the 15 January 1979 Session of RUTHERFORD County Superior Court granting the defendant a new trial. The defendant was charged in three separate indictments, all proper in form, with three counts of forgery and uttering forged checks. On 8 August 1978, defendant pled guilty before Howell, J. in Rutherford County Superior Court to three counts of uttering forged checks and was sentenced to imprisonment for ten years on each count with the sentences to run concurrently.
Attorney General Rufus L. Edmisten by Assistant Attorney General Joan H. Byers for the State.
J. Nat Hamrick for the defendant.
Justice BROCK did not participate in the consideration or decision of this case.
Justice CARLTON concurring.
Chief Justice BRANCH and Justice HUSKINS join in the concurring opinion.
On 2 October 1978, defendant filed an application for a post-conviction hearing (motion for appropriate relief) on the ground that his attorney had promised him that he would be given probation if he pled guilty and would not serve any time in prison. On 1 November 1978, Jackson, J. appointed J. Nat Hamrick of the Rutherford County Bar to represent defendant on his petition and ordered a hearing to be held on 8 November 1978.
Hamrick was not successful in getting the matter heard on 8 November 1978 or for the remainder of 1978. He unsuccessfully attempted to have the district attorney's office set the matter for hearing at the 15 January 1979 Mixed Session of Rutherford County Superior Court. Hamrick asked Riddle, S.J., who was assigned to hold that session of court, to hear the matter and advised the district attorney's office of the request. Riddle, S.J., agreed to hear the matter at the conclusion of jury trials for that week. District Attorney Lowe delivered a letter to Riddle, S.J. on 15 January 1979 stating that his office had been advised on 12 January 1979 that Riddle, S.J. had been requested to hear the matter at the 15 January 1979 Mixed Session of Court. Mr. Lowe stated that his office had not scheduled the matter for hearing at the 15 January 1979 Session because he and the members of his staff would be holding a criminal session of court in McDowell County during that week. On that date District Attorney Lowe had three assistants. We take notice of the fact that no criminal court was held in the Twenty-ninth District on Friday, 19 January 1979, in District or Superior Court, except for a criminal session of District Court in Rutherford County. On Thursday afternoon, 18 January 1979, Riddle, S.J. advised Hamrick that he would hear the matter the next day after the conclusion of the last case for that session. Hamrick called the district attorney's office and advised them concerning when Riddle, S.J. planned to hear the matter. There was apparently no further communication from the district attorney's office.
No one from the district attorney's office was present at the hearing. Riddle, S.J. heard the defendant's evidence and granted a new trial. The State petitioned the Court of Appeals for an order granting supersedeas which was denied by that Court. We granted the State's petition for a writ of certiorari.
The sole issue presented in this appeal is whether a trial judge has the authority and responsibility to schedule a matter for hearing or whether all authority and responsibility for scheduling hearings on post-conviction motions rest with the district attorney's office.
G.S. 7A-61 provides that the district attorney "shall prepare the trial dockets." However, that statute does not mean that a judge is without authority to schedule a matter for a hearing in court. G.S. 15-217.1 speaks specifically to the procedure applicable to the review of criminal trials. It provides in relevant part that:
"The proceeding shall be commenced by filing with the clerk of superior court of the county in which the conviction took place a petition, with two copies thereof, verified by affidavit . . . .
The clerk shall place the petition upon the criminal docket upon his receipt thereof. The clerk shall promptly after delivery of copy to the district attorney bring the petition, or a copy thereof, to the attention of the resident judge or any judge holding the courts of the district or any judge holding court in the county. Such judge shall review the petition and make such order as he deems appropriate with respect to permitting the petitioner to prosecute such action without providing for the payment of costs, with respect to the appointment of counsel, and with respect to the time and place of hearing upon the petition." G.S. 15-217.1 (Emphasis added.)
Therefore, we hold that a trial judge has the authority and sole responsibility to schedule the hearings on these post-conviction motions.
The Criminal Procedure Act provides in relevant part that when a motion for appropriate relief is made in written form and is made more than ten days after entry of judgment, then service of the notice of hearing "must be made not less than five working days prior to the date of the hearing." G.S. 15A-1420(a)(2). The specific date for the hearing in this case was not actually determined until the day before the hearing was held. However, we hold that, on the facts of this case, the district attorney had at least five working day's notice that the trial judge planned to hear the case at the end of the 15 January 1979 session of court.
There was a failure of effective communication in this case. It would have been the better practice for the trial judge to have communicated directly through the court system with the district attorney or a member of his staff rather than indirectly through defense counsel. The notice of hearing should be made orally in court to both parties or in the form of a written order sent to both parties much as Jackson, J. did in his order of 1 November 1978.
The district attorney had the opportunity to be present and to be heard at the hearing but chose not to be there, nor did he request a continuance due to any actual conflict in the scheduled appearances for himself or the members of his staff. There must be cooperation between the district attorney, the trial judge and counsel for the petitioner in these types of hearings in order to make the most effective use of the court's time.
The trial judge held the hearing and granted defendant a new trial. In the actions of the trial judge we find
No error.
Justice BROCK did not participate in the consideration or decision of this case.