53 N.C. App. 793 | N.C. Ct. App. | 1981
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.
No error.