State v. Mitchell , 298 N.C. 549 ( 1979 )

COPELAND, Justice.

The sole issue presented in this appeal is whether a trial judge has the authority and responsibility to schedule a matter for hearing or whether all authority and responsibility for scheduling hearings on post-conviction motions rest with the district attorney’s office.

G.S. 7A-61 provides that the district attorney “shall prepare the trial dockets.” However, that statute does not mean that a judge is without authority to schedule a matter for a hearing in court. G.S. 15-217.1 speaks specifically to the procedure applicable to the review of criminal trials. It provides in relevant part that:

“The proceeding shall be commenced by filing with the clerk of superior court of the county in which the conviction took place a petition, with two copies thereof, verified by affidavit ....

The clerk shall place the petition upon the criminal docket upon his receipt thereof. The clerk shall promptly after delivery of copy to the district attorney bring the petition, or a copy thereof, to the attention of the resident judge or any judge holding the courts of the district or any judge holding court in the county. Such judge shall review the petition and make such order as he deems appropriate with respect to permitting the petitioner to prosecute such action without providing for the payment of costs, with respect to the appointment of counsel, and with respect to the time and place of hearing upon the petition.” G.S. 15-217.1 (Emphasis added.)

Therefore, we hold that a trial judge has the authority and sole responsibility to schedule the hearings on these post-conviction motions.

The Criminal Procedure Act provides in relevant part that when a motion for appropriate relief is made in written form and is made more than ten days after entry of judgment, then service of the notice of hearing “must be made not less than five working days prior to the date of the hearing.” G.S. 15A-1420(a)(2). The specific date for the hearing in this case was not actually determined until the day before the hearing was held. However, we hold that, on the facts of this case, the district attorney had at least five working day’s notice that the trial judge planned to hear the case at the end of the 15 January 1979 session of court.

There was a failure of effective communication in this case. It would have been the better practice for the trial judge to have communicated directly through the court system with the district attorney or a member of his staff rather than indirectly through defense counsel. The notice of hearing should be made orally in court to both parties or in the form of a written order sent to both parties much as Jackson, J. did in his order of 1 November 1978.

The district attorney had the opportunity to be present and to be heard at the hearing but chose not to be there, nor did he request a continuance due to any actual conflict in the scheduled appearances for himself or the members of his staff. There must be cooperation between the district attorney, the trial judge and counsel for the petitioner in these types of hearings in order to make the most effective use of the court’s time.

The trial judge held the hearing and granted defendant a new trial. In the actions of the trial judge we find

No error.

Justice BROCK did not participate in the consideration or decision of this case.