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State v. Armistead

Court of Appeals of North Carolina

November 7, 2017

STATE OF NORTH CAROLINA,
v.
JAMES GREGORY ARMISTEAD, Defendant.

          Heard in the Court of Appeals 19 September 2017.

         Appeal by Defendant from judgment entered 25 May 2016 by Judge Marvin K. Blount, III, in Pitt County No. 11 CRS 057539 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Michelle D. Denning, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.

          INMAN, Judge.

         James Gregory Armistead ("Defendant") appeals his conviction following a jury verdict finding him guilty of impaired driving with a finding of one aggravating factor. Defendant argues that he was denied his constitutional right to a speedy trial and that the trial court erred by denying his motion to dismiss pursuant to N.C. Gen. Stat. § 15A-711. After careful review, we hold that Defendant has failed to establish error.

         Factual and Procedural History

         The evidence at trial tended to show the following:

         At around 1:30 a.m. on 3 September 2011, Defendant was arrested and cited for driving while impaired in Pitt County, North Carolina. At the Pitt County Detention Center, Defendant submitted a breath sample, which reported a blood alcohol concentration of 0.15. Defendant was released on bail at approximately 12:30 p.m. the same day.

         On 19 January 2012, Defendant appeared in Pitt County District Court, was appointed counsel, and his case was continued to 22 March 2012. The case was continued again to 3 May 2012 to allow additional time for discovery.

         On 1 May 2012, in an unrelated matter in Beaufort County, Defendant was sentenced to an active prison term of 108 to 139 months in the custody of the North Carolina Department of Adult Correction. Defendant began serving that sentence on the same day.

         As a result of his incarceration, Defendant did not appear in Pitt County Superior Court on 3 May 2012. Neither Defendant's appointed counsel nor the prosecutor was aware that Defendant was incarcerated. The trial court issued an order for Defendant's arrest.

         On or about 26 June 2012, Defendant contacted his prison case manager requesting a list of the case numbers for any pending charges against him as well as addresses for the Pitt County, Washington County, and Lenoir County Clerks of Court. Defendant's case manager responded with the case numbers and the addresses for the clerks of court in all three counties.

         On 22 July 2012, Defendant sent letters to the Washington and Lenoir County Clerks of Court requesting resolution of the charges pending against him in those counties. The letter sent to Washington County, which referenced the case numbers of the pending charges, was file stamped with the clerk's office on 26 July 2012. The Lenoir County charges were dismissed on 23 August 2012 and the Washington County charge was dismissed on 1 October 2012.

         On 21 September 2012, the prosecutor in Pitt County filed a dismissal of the driving while impaired charge with leave to prosecute the case later, citing Defendant's failure to appear for the 3 May 2012 hearing and the prosecutor's belief that Defendant could not readily be found.

         On 15 October 2012 and 14 November 2012, respectively, Defendant sent mail to "CSC Greenville" and "Admin Off Cts, " but prison records do not indicate the substance of the correspondence. On 29 November 2012, Defendant drafted, and had notarized, a letter captioned "Motion and Request for Dismissal." The letter, addressed to the presiding or resident judge of the Pitt County Superior Court, stated Defendant's case number as "11 CRS 57539" and requested dismissal of the case pursuant to N.C. Gen. Stat. § 15A-711.[1] Prison records indicate that Defendant sent another letter to "Admin Off Cts." on 30 November 2012, but again do not disclose the substance of the correspondence. There is no court record indicating that the clerk of court or district attorney in Pitt County received any of these letters.

         On 13 August 2015, Defendant's prison case manager contacted the Pitt County District Attorney's Office to inquire about the driving while impaired charge and was informed that the charge remained pending and that Defendant would receive notice when the case was next set for a hearing.

         On 10 November 2015, Defendant wrote another letter to the Pitt County Clerk of Court indicating that he had yet to receive a response regarding his motion to dismiss the pending charge, which Defendant correctly identified as case number "11CR57539." It was through this letter that Defendant's counsel learned of his incarceration and contacted the District Attorney's Office to re-calendar Defendant's case.

         Defendant's case proceeded to trial on 28 January 2016 in Pitt County District Court. Defendant was convicted and sentenced as a Level 3 offender to an active term of six months in prison. Defendant appealed to the Pitt County Superior Court on the same day and was released on $1.00 secured bond.

         Defendant moved to dismiss the case pursuant to N.C. Gen. Stat. § 15A-711 on 25 April 2016. A pre-trial hearing was set on 23 May 2016 to address Defendant's motion. The trial court denied Defendant's motion and the case proceeded to trial before a jury.

         At trial, the State presented evidence of Defendant's impairment through the testimony of the arresting officer and the results of the Intoxalyzer test administered on the night of his arrest. The jury convicted Defendant on 25 May 2016 for driving while impaired and found one aggravating factor-that Defendant had an alcohol concentration of 0.15 or more at the time of the offense, ...


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