In general, a judge will allow a continuance for good cause of a scheduled trial date. It is routinely granted in misdemeanor cases, looked at with more scrunity in felony cases, especially if the defendant is in custody. Did your attorney object? Has the defendant made a motion for a speedy trial under both state and federal court standards? I don't know if North Carolina has a speedy trial statute. The leading case is Barker vs. Wingo which sets out several factors for the trial court to consider if the defendant makes a motion to dismiss based on delays:
U.S. Supreme Court
Barker v. Wingo, 407 U.S. 514 (1972)
Barker v. Wingo
Argued April 11, 1972
Decided June 22, 1972
407 U.S. 514
Petitioner was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, initially for the purpose of first trying petitioner's alleged accomplice so that his testimony, if conviction resulted, would be available at petitioner's trial. Before the accomplice was finally convicted, he was tried six times. Petitioner made no objection to the continuances until three and one-half years after he was arrested. After the accomplice was finally convicted, petitioner, after further delays because of a key prosecution witness' illness, was tried and convicted. In this habeas corpus proceeding, the Court of Appeals, concluding that petitioner had waived his right to a speedy trial for the period prior to his demand for trial, and, in any event, had not been prejudiced by the delay, affirmed the District Court's judgment against petitioner.
Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. Pp. 407 U. S. 519-536.
442 F.2d 1141, affirmed.
POWELL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 407 U. S. 536.
Page 407 U. S. 515
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
Typically, in our district, I make the District Attorney make a motion to continue the case in front of the Judge. I will object to a continuance by the State and inform the Judge if my client has taken off work, come from out of town, etc. The Judge usually will want to view the subpoena to make sure that the witness was actually subpoenaed. There is case law out there that states that if the Judge denies the state's continuance and the case is dismissed, then the state can still try and recharge the defendant. This has happened with a lot of highway patrol dwi cases. It really depends on the kind of case and the jurisdiction in which you are charged. I would hire an attorney. Andrew Banzhoff is an experienced attorney in Asheville, NC tell him I said hello.
A misconception that some of my clients have is that if the police officer doesn't show up, the case is automatically dismissed. I have yet to see that happen with any of my cases. You shouldn't be listening to the DA, he is on "the other team." If you are going to trial, this is an issue for your attorney to address. At some point, your attorney may be able to make a motion with regard to speedy trial. Talk to your attorney.
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