DISTRICT COURT DIVISION
___________ COUNTY                       FILE NO. 


         vs.                     MOTIONS TO QUASH
                             AND TO DISMISS


     NOW COMES the Defendant, by and through Marcus E. Hill and moves the Court,

pursuant to N.C. Gen. Stat.§§15A-954 et. seq. and 15A-1415, to quash the warrant and to

dismiss with prejudice the charges against him.  In support of his motion, the Defendant shows

unto the Court the following:
1.    On November 16, 2008, the defendant was charged with Driving While Impaired in

State vs.                 .  On January 28, 2009, the first court date, the case was

continued until February 25, 2009, because the sitting Judge requested a recusal.  The

defendant is a local attorney, known to the local bar and many judges.

2.    On February 25, 2009, the case was continued until March 25, 2009, because the

calendared, visiting Judge was not available.

3.    On March 25, 2009, the calendared visiting Judge was not available again but the

defendant's attorney called the case for trial.  The police officer was present in

court and heard the Judge order everyone back to court at 2:00 p.m.  At 2:00 p.m. on March

25, 2009, the officer did not appear. By 2:45 p.m. the court had finished all other business and

the officer had not appeared.  Consequently, the State moved for a continuance.  The Court

denied the State's motion.  Thereupon, the State voluntarily dismissed the case.

4.    That same night, March 25, 2009, the district attorney issued a warrant for the

defendant's arrest.  The defendant was arrested by police officers after 11:00 p.m. at his

residence and was placed in handcuffs on the street outside of his residence in front of his


5.    Defendant requests the Court to dismiss the case for the following reasons:

     (i) The court date was not set within one month of the issuance or reissuance of the summons or warrant, pursuant to N.C.G.S§ 15A-303.

     N.C.G.S § 15A-303 states, "Except for cause noted in the criminal summons by

the issuing official, an appearance date may not be set more than one month following the

issuance or reissuance of the criminal summons."  In this case, the original summons was

issued on November 16, 2008.  After the case was dismissed, a warrant was then issued on

March 25, 2009.  The court date set by the warrant is May 20, 2009.  The court date, May 20,

2009, is more than one month and is, in fact, almost two months following the issuance of the

warrant and more than five months following the issuance of the original summons.  

     Additionally, no cause for the new court date to be set more than one month from its

issuance, as required by the statute, is noted on the warrant.
     The warrant itself is improper.  Pursuant to N.C.G.S. Statute 15A-304, a judicial official

may issue a warrant for arrest after considering circumstances, such as that a person summoned

will fail to appear, that a danger exists that a person accused will escape, that a danger exists

that there may be injury to person or property or that the offense is serious.  Defendant avers

that the seriousness of the offense that could have been considered to justify the issuance of the

warrant is that the officer chose not to return to court for the trial.

     If a warrant is regular and valid on its face, objection thereto, should there be grounds

therefor, must be by motion to quash.  Steve v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959).

Perhaps, not admitting anything, the warrant is regular and valid on its face but a reading of the

applicable statute renders the warrant defective and it should therefore be quashed.

     (ii) The prosecutor abused his calendaring authority having the warrant issued and in recalendaring the case for trial.

     By statute [and local rule], the prosecutor has the authority to calendar criminal cases.

N.C. Gen. Stat. 7A-49.4(a) [case management rule].  However, this authority is limited in two

ways.  First, the prosecutor's authority is subject always to the principles of Due Process found

in both state and federal constitutions.  U.S. Const. Amend XIV; N.C. Const. Art. I, 24.  It is a

violation of Due Process for a prosecutor to exercise the calendaring authority to gain a tactical

advantage over a criminal defendant.  Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).

     Second, under our Rules of Professional Responsibility, a prosecutor has the ethical

duty to exercise his authority to do justice.  N.C. Rules or Professional Responsibility 3-1.11.

     This manipulation of the calendar violated the defendant's constitutional rights to due

process of law.  Simeon v. Hardin, 339 N.C. at 378.  Such a violation is either reversible per se,

or, at least, presumptively prejudicial.  Id; see also State v. Cofield, 320 N.C. 297 (1987); State

v. Harbison, 315 N.C. 175 (1985).  
     Under the constitutional standard of prejudice, the state has the burden of showing that

the manipulation of the calendar was harmless to the defendant beyond a reasonable doubt.  

N.C. Gen. Stat. 15A-1443(b).

     The state cannot show beyond a reasonable doubt that its use of the calendaring

authority in this case did not prejudice the defendant.  Therefore, the charges against the

defendant should be dismissed with prejudice.

(iii) The State' recalendaring of an already dismissed case, without the Court's permission undermines the Court's authority to deny continuances and to calendar cases.

     Under North Carolina law when a continuance is denied the State may take a nolle

prosequi where the State declares that it will not at that time prosecute the suit further;

Klopfer v. North Carolina, 386 U.S. 213, 214 (1967).  However, the case may only be restored

to the trial docket when ordered by the Judge upon the solicitor's application, Id.;

     Said another way, in John A. Lassiter v. R.L. Turner 423 F.2d 897 (1970).

"under North Carolina law, a nolle prosequi, not with leave, does not terminate the prosecution.

It may be reopened with the court's permission. " John A. Lassiter v. R. L. Turner 423 F.2d

897 (1970) (emphasis added).

     On March 25, 2009, when the Court denied the State's continuance, the State had been

on notice and should have been ready to proceed with the case on that day.  Apparently, the

State did not have the evidence to proceed and thus dismissed the case.  By issuing the warrant

and  recalendaring the case two months later, the State is abusing its calendaring authority to

give it more time to prepare and procure the officer, a necessary witness, to be at trial.  The

State should not be given another bite at the apple.

     Furthermore, allowing the State to re-open the case against the Defendant is

fundamentally unfair as prohibited by the Due Process Clause of the Constitution of

the United States Constitution as well as the North Carolina Constitution;

     The Court has the ultimate authority over managing the trial calendar, NCGS 7A-

49.4(h)m see also Simeon v. Hardin 339 NC 358 (1994);

     Allowing the State to re-open the case against the Defendant takes away the Court's

authority to deny continuances and undermines its calendaring authority.  NCGS 7A-49.4

(h), see also Simeon v. Hardin 339 NC 358 (1994).

     WHEREFORE, the Defendant respectfully requests the following relief from the Court:

     1.    That the Court quash the warrant in this case;

     2.    That the Court not consent to the Assistant District Attorney's request, once

         made, to re-open this case;
     3.    That any and all charges against the Defendant be dismissed with prejudice; and

     4.    That the Court grant the Defendant such other relief as justice requires.

This is the___________day of __________________, 20____.

                         Marcus E. Hill
                         Attorney for Defendant
                         311 E. Main Street
                         Durham, North Carolina 27701
                         (919) 688-1941