State v. Parnell

ARNOLD, Judge.

Since 11 November was more than 120 days after 16 June, the burden is upon the State to establish periods of exclusion from the computation of the 120-day period set out in G.S. 15A-701. See G.S. 15A-703. The only period significant to this appeal is the 46-day continuance order on 4 September 1980. If this period was properly excluded, then the defendant was tried within the 120-day period. If not, the 120 days elapsed before defendant’s counsel withdrew on 22 October.

G.S. 15A-701 provides:

“(b) The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:

* * * *

(8) Any period of delay occasioned by the venue of the defendant’s case being within a county where, due to limited number of court sessions scheduled for the county, the time limitations of this section cannot reasonably be met; . . .”

We hold that the order set out above fully complies with the requirements of G.S. 15A-701(b)(8). The order contained a finding that due to the press of other criminal cases defendant’s case was not reached. We believe this finding provided a “factual basis . . . for a determination that the case could not reasonably have been tried during the scheduled session . . .” as required in State v. Edwards, 49 N.C. App. 426, 428, 271 S.E. 2d 533, 535 (1980). The period from 4 September to 20 October was properly excluded and defendant was thus tried within the required 120 days, excluding the 46 days between sessions.

We note that defendant had a remedy if he were dissatisfied with the continuance of his case to the next session. G.S. 15A-702 provides that a defendant can move for a prompt trial any time after 120 days have elapsed, in which case a trial may be ordered within 30 days of the filing of the motion. See State v. Cornell, 51 N.C. App. 108, 275 S.E. 2d 857 (1981). That defendant made no such motion indicates to us his acquiescence in the initial continuance. He may not now complain that the continuance prejudiced him.

No error.

Judges Martin (Robert M.) and Hill concur.