State v. Marlow
300 S.E.2d 567
N.C. Ct. App.
1983
Check Treatment
WELLS, Judge.

Defendant contends he was denied his statutory right to a speedy trial and that his trial was improperly joined for trial with defendant Tena Marion.

G.S. 15A-701(al)(l) required that defendant’s trial begin within the 120 days of the date of his indictment. G.S. 15A-701(b)(6) allows the trial court to exclude from the 120 day period, “[a] period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted.” The period may not be excluded unless the co-defendants were formally joined. State v. Capps and Staton, 61 N.C. App. 225, 300 S.E. 2d 819 (1983). Since defendant Marlow and Tena Marion were not formally joined as co-defendants between 14 December 1981 and 8 February 1982, the trial judge erred in excluding that period from the 120 days that the State had in which to commence defendant’s trial and defendant was entitled to a dismissal under G.S. 15A-703.

While it is not necessary for us to address defendant’s joinder argument, under the facts in this case, we deem it appropriate.

*304G.S. 15A-927(c)(2)a, in pertinent part, is as follows:

(c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.—
(2) The court, ... on motion of the defendant . . . must deny a joinder for trial or grant a severance of defendants whenever:
a. If before trial, it is found necessary to protect a defendant’s right to a speedy trial . . .

While ordinarily the decision as to severance or joinder of defendants lies within the sound discretion of the trial judge, State v. Braxton, 294 N.C. 446, 242 S.E. 2d 769 (1978), in this case the trial court’s findings of fact show that, if it had been correct for the trial court to exclude defendant Marion’s delay days, it would have been necessary to deny the State’s motion to join co-defendant Tena Marion’s trial in order to protect defendant’s rights to a speedy trial.

Upon remand, the trial court shall determine whether to order that the charges against defendant be dismissed with or without prejudice. G.S. 15A-703.

Because of the result we have reached, we deem it unnecessary to reach or determine defendant’s remaining assignments of error.

For the reasons stated, the judgment entered is vacated and the cause is remanded.

Vacated and remanded.

Chief Judge VAUGHN and Judge Braswell concur.