State v. Spivey

563 S.E.2d 12, 150 N.C. App. 189, 2002 N.C. App. LEXIS 394

• Court: Court of Appeals of North Carolina
• Decided: May 7, 2002
• Docket: COA01-458
• Status: Published

Opinions

WYNN, Judge.

The record reveals defendant, Henry Bernard Spivey, Jr., on 3 May 1999, pled guilty to the charge of second-degree murder. He seeks to appeal from the trial court’s denial of his motion to dismiss for lack of a speedy trial based on a four and one-half year delay in taking him to trial. We grant certiorari to review his appeal. N.C. Gen. Stat. § 16A-1444(e) (1999).¹

Upon review, we find State v. Hammonds, controlling. 141 N.C. App. 152, 541 S.E.2d 166 (2000), affirmed, 354 N.C. 353, 554 S.E.2d 645 (2001). In Hammonds, the defendant argued that the trial court erred by denying his motion to dismiss where there was a pretrial delay of four and one half years. In Hammonds, this Court stated that:

Defendant argues that the delay between his arrest and trial was caused in part by the State’s “laggard performance.” The record, however, reveals that the local docket was congested with capital cases. The trial court described it as “chopped the block [sic] with capital cases. They’re trying two at a time and just one right after the other, and there are only so many that can be tried.” “Our courts have consistently recognized congestion of criminal court dockets as a valid justification for delay.” State v. Hughes, 54 N.C. App. 117, 119, 282 S.E.2d 504, 506 (1981) (citations omitted) (finding defendant failed to meet his burden where delay was result of backlog of cases). Indeed, “[b]oth crowded dockets and lack of judges or lawyers, and other factors, make some delays inevitable.” State v. Brown, 282 N.C. 117, 124, 191 S.E.2d 659, 664 (1972) (citation omitted). Accordingly, in assessing defendant’s speedy trial claim, we see no indication that court resources were either negligently or purposefully underutilized.

State v. Hammonds, 141 N.C. App. at 160-61, 541 S.E.2d at 173. This Court held in Hammonds that the delay of over four and one half years between defendant’s arrest and trial did not constitute denial of his constitutional right to a speedy trial.

In the present case, defendant was arrested on 10 October 1994 and charged with first-degree murder; he pled guilty on 3 May 1999. Defendant argues the State was not diligent in bringing him to trial in a speedy and prompt manner since his arrest. Like Hammonds, this case originated in Robeson County. The State in this case made a showing as it did in Hammonds, that the dockets were clogged with murder cases and this caused an unavoidable backlog of cases. We are bound by Hammonds holding of “no indication that court resources were either negligently or purposefully underutilized.”

Affirmed.

Judge TYSON concurs. Judge TIMMONS-GOODSON dissenting with separate opinion.

1 . Except as provided in subsections (al) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari. If an indigent defendant petitions the appellate division for a writ of certiorari, the presiding superior court judge may in his discretion order the preparation of the record and transcript of the proceedings at the expense of the State.