76 N.C. App. 508 | N.C. Ct. App. | 1985
By his first assignment of error, defendant raises the issue of whether the trial court erred in dismissing the charge against him without prejudice, rather than with prejudice, for the State’s failure to prosecute him within the time limit specified by the Speedy Trial Act, N.C. Gen. Stat. Sec. 15A-701 et seq. Section 15A-703 in pertinent part provides:
... In determining whether to order the charge’s dismissal with or without prejudice, the court shall consider, among other matters, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; the impact of a re-prosecution on the administration of this Article and on the administration of justice. . . .
The statute [G.S. 15A-703] thus leaves in the discretion of the trial court the determination of whether dismissal should be with or without prejudice. It mandates, however, that the court consider each of the factors set forth in making that determination.
Id. at 29, 275 S.E. 2d at 260 (emphasis original).
In the instant case, the trial judge stated that he had considered each of the factors set forth in the statute and that the original indictment should be dismissed without prejudice. His order further stated:
The Court is also of the opinion that the superseding indictments returned on January 3, 1984 against the Defendant begin a new 120 days for purposes of the application of the Speedy Trial requirements contained in G.S. 15-70 [sic] et seq. In reaching this decision the Court did find as a fact that the attainment of superseding indictments appear to have been both appropriate and in good faith.
The record discloses that of the five continuances, two were at the request of the State because counsel for defendant’s co-defendant (Medlin) was unable to be present, two others were at the request of the State because the Assistant District Attorney was involved in the trial of an individual who, unlike defendant, was in custody, and one was at the request of defense counsel because “The trial of other cases prevented the trial of this case during this session.” Manifestly, there was sufficient cause shown for the trial judge to conclude that the superseding indictments were obtained in good faith and not in contravention of the Speedy Trial Act. Accordingly, we overrule this assignment of error.
Defendant next assigns error to the denial of his timely motions to dismiss the charge against him. He contends there is no evidence in the record that he knew or had reasonable grounds to believe that the Datsun 280-ZX was stolen or that he acted with a dishonest purpose. The elements of the crime with which defend
(1) possession of personal property, (2) valued at more than $400.00, (3) which has been stolen, (4) the possessor knowing or having reasonable grounds to believe the property to have been stolen, and (5) the possessor acting with a dishonest purpose.
State v. Davis, 302 N.C. 370, 373, 275 S.E. 2d 491, 493 (1981).
Assuming arguendo there is sufficient evidence to raise an inference that defendant knew or had reasonable grounds to believe that the 280-ZX was stolen, there is no evidence in this record to raise an inference that defendant “acted with a dishonest purpose.” We note that one of defendant’s principal arguments at trial in support of his motion to dismiss was that the State had offered no evidence that he had acted with a dishonest purpose. In his brief on appeal defendant argues vehemently that the record contains no evidence that he acted with a dishonest purpose when he drove the 280-ZX. Yet, the State in its brief makes no response whatsoever to this argument. The State argues only that the evidence is sufficient to raise an inference that defendant knew or had reasonable grounds to believe that the automobile in question was stolen.
We agree with defendant. The State’s own evidence discloses that defendant was merely driving the automobile for Medlin. There is no evidence that defendant was being paid by Medlin or that he had any financial interest in the vehicle or that he expected to gain any financial reward for doing his friend a favor. There is no evidence in the record that defendant and Medlin had ever discussed the transaction before Medlin went to get defendant to drive the car.
In short, the record is devoid of any evidence that defendant possessed the stolen vehicle for a dishonest purpose.
The judgment appealed from must be reversed.
Reversed.