State v. Klopfer , 266 N.C. 349 ( 1966 )

145 S.E.2d 909 (1966) 266 N.C. 349

STATE
v.
Peter KLOPFER.

No. 829.

Supreme Court of North Carolina.

January 14, 1966.

T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

Wade H. Penny, Jr., Durham, for defendant appellant.

HIGGINS, Justice.

The appellant challenged the right of the solicitor, even with the approval of the judge, to enter a nolle prosequi with leave in the criminal prosecution pending against him in the Superior Court. Stated another way, he insists his objection takes away from the solicitor and the court the power and authority to enter the order. The reason assigned is that the procedure denies him his constitutional right of a speedy trial.

When a nolle prosequi is entered there can be no trial without a further move by the prosecution. The further move must have the sanction of the court. When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application. When a nolle prosequi with leave is entered, the consent of the court is implied in the order and the solicitor (without further order) may have the case restored for trial.

"A nol. pros. in criminal proceedings is nothing but a declaration on the part of the solicitor that he will not at that time prosecute the suit farther. Its effect is to put the defendant without day; that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time." Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 39 L.R.A.,N.S., 1215; State v. Thornton, 35 N.C. 256. Without question a defendant has the right to a speedy trial, if there is to be a trial. However, we do not understand the defendant has the right to compel the State to prosecute him if the State's prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi. In this case one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another effort.

In this case the solicitor and the court, in entering the nolle prosequi with leave followed the customary procedure in such cases. Their discretion is not reviewable under the facts disclosed by this record. The order is

Affirmed.