FILE NO.


         vs.                            ORDER

     This matter, coming on to be heard on the 15th day of July 2009, the Honorable ____________ presiding.  The state was represented by Assistant District Attorney ________, and the defendant was represented by ______________.  Attorney _____ had previously filed a motion dated the 15th day of May, 2009, to dismiss the charges against the defendant with prejudice.  After hearing the arguments of the parties and carefully studying the brief and motion filed by Attorney ______, the court makes the following:

1.    On November 16, 2008,  the defendant was charged with driving while impaired.  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, including the police officer, 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 after 11:00 p.m. at his residence and was placed in handcuffs on the street outside of his residence in front of his neighbors.  
5.    That same night, March 25, 2009, a warrant was issued at the direction of the District Attorney for the defendant's arrest.  He was arrested at his home after 11:00 p.m., handcuffed in his front yard in view of his neighbors and taken to the Magistrate where he was detained for two hours before being released.
6.    The court date set on the warrant was May 20, 2009.  On that date, Judge _______ was assigned to hear defendant's case with a new court date of July 15, 2009.
7.    On July 15, 2009, the Court granted the defendant's motion to dismiss the action with prejudice.
8.    The State entered notice of  appeal orally on July 15, 2009 to the Court's order dismissing the criminal charges against the defendant with prejudice.

Based on the foregoing findings of fact, the Court finds the following conclusions of law.
1.    The Court has jurisdiction over the parties and the subject matter in this action.
2.    This Court has reviewed the findings of fact and finds the same reasonable and justified under the circumstances.
3.    The Fifth and Fourteenth Amendments to the United States Constitution guarantee all citizens of the United States the right to due process of law.  
4.    The Fifth Amendment says in part "nor shall be (any person ) be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."  
5.    The Fourteenth Amendment provides in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law."
6.    The Sixth Amendment to the United States Constitution guarantees "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed,..."
7.    The open courts clause of the N.C. Const. Art. I, Sect. 18, guarantees a criminal defendant a speedy trial, an impartial tribunal, and access to the court to apply for redress of injury, Simeon v. Hardin 339 NC 358, 451 S.E. 2d 858 (1994).
8.    N.C.G.S. § 15A-954 states, "(a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:
(1) The statute alleged to have been violated is unconstitutional on its face or as applied to the defendant. . .
(3) The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.         (4) The defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution.

9.    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.
10.    In the following ways the State violated the above precepts:
a.   The State made no effort to obtain the Court's permission before it issued its second warrant.  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.  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 at 902 (1970) (emphasis added).
b.  Pursuant to N.C.G.S.  § 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.  Since the defendant is a well-known local attorney, lives in the area, and is married to a person working in the area,, he is certainly not a flight risk.
c.  N.C.G.S.  § 15A-304(e) provides,
The order for arrest must direct that a law-enforcement officer take the defendant into custody and bring him without unnecessary delay before a judicial official to answer to the charges made against him.
d.  The Criminal Code Commission Commentary to  N.C.G.S.  § 15A-303 states,
Note that due to the interchangeability of parts of process a warrant for arrest may be based on the criminal summons (it needs only the order to the officer), and the same is true of an order for arrest. . . .
e.  N.C.G.S.  § 15A-303(d) 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.
f.      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, subsequently continued until July 15, 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.  The continued court date of July 15, 2009, is almost 4 months after the second summon's issuance.          
g.  The defendant was punished and denied due process of law by being arrested at his home late in the evening in front of his neighbors and friends and by being handcuffed and transported in a police car to the Magistrate's office where he spent a long period of time arranging to be released on a charge which had been dismissed previously that very same day and upon which he had already posted a bond.
h.  By reissuing the warrant and recalendaring the case two months after its motion to continue had been denied, the State usurped the inherent authority of the presiding judge and made the court's authority to manage its calendar effectively null and void, effectively accomplishing the curious result that the State can continue a case whether or not the judge agrees to said continuance by application of the authority to recharge the defendant after a dismissal.  
i.  The State used its calendaring authority as a tactical advantage to gain more time so that its witness, the arresting officer, would be present to testify.
11.    That under the Fifth and Fourteenth Amendments of the United States Constitution and under the North Carolina Constitution, the defendant is guaranteed due process of law, and the State's actions in this case violated those precepts.
12.    That under the Sixth Amendment of the United States Constitution and under the North Carolina Constitution the defendant is guaranteed the right to a speedy and public trial by an impartial jury of the State and the District Attorney's actions in this case violated those clauses as well.
13.    The State neglected its ethical duty to exercise its authority to do justice in this case.
14.    The defendant is entitled as a matter of law to a dismissal of the charges against  him with prejudice by the court.

1.    That the defendant's motion to dismiss based on due process and other constitutional grounds is hereby granted.

This is the __________ day of ___________________, 20_____.

The Hon. ______________, Judge Presiding