State v. Hege ( 1985 )

WEBB, Judge.

The sole question on this appeal is whether it was error not to dismiss this case for the failure of the State to bring the defendant to trial within six months of the date the request for a trial was delivered to the Clerk of Superior Court. The “Rules and Policies” handbook of the North Carolina Department of Corrections instructed the defendant that this would be the case. G.S. 15A-711 provides in part:

(a) When a criminal defendant is confined in a penal or other institution under the control of the State or any of its subdivisions and his presence is required for trial, the prosecutor may make written request to the custodian of an institution for temporary release of the defendant to the custody of an appropriate law-enforcement officer who must produce him at the trial. The period of the temporary release may not exceed 60 days. The request of the prosecutor is sufficient authorization for the release, and must be honored, except as otherwise provided in this section.

(c) A defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him may, by written request filed with the clerk of the court where the other charges are pending, require the prosecutor prosecuting such charges to proceed pursuant to this section. A copy of the request must be served upon the prosecutor in the manner provided by Rules of Civil Procedure, G.S. 1A-1, Rule 5(b). If the prosecutor does not proceed pursuant to subsection (a) within six months from the date the request is filed with the clerk, the charges must be dismissed.

This section requires that a prisoner must file a request for trial with the clerk and a copy of the request must be served on the prosecutor in the manner provided by G.S. 1A-1, Rule 5(b). No service on the prosecutor was had. The defendant did not comply with G.S. 15A-711(c) and he was not entitled to have the case dismissed under that section. The State did not waive the provisions of G.S. 15A-711(c) by the issuance of a handbook by the North Carolina Department of Corrections which instructs inmates that they must file the request for a trial only with the Clerk of Superior Court.

No error.

Judges Johnson and Phillips concur.