N.C. R. Prac. Super. & Dist. Ct. 1

As amended through June 18, 2024

Rule 1 - MOTIONS FOR CONTINUANCE-CRIMINAL CASES

Criminal cases should be disposed of at the earliest opportunity, including the first trial setting; however, when compelling reasons for continuance are presented which would affect the fundamental fairness of the trial process, a continuance may be granted for good cause, or other grounds provided by law. Requests for continuances not addressed below that are made after 120 days from the first calendaring before a judge shall be granted only for extraordinary cause.

1.1 Appropriate Court Official: Rulings on any request for continuance made on the day of court for the session in which the case is calendared shall be the responsibility of the presiding trial judge of that court, subject to the delegations of authority specifically authorized in these rules.

A) Before any motion to continue is granted, the appropriate court official shall determine whether the matter is one in which a written record concerning counsel needs to be made. If required, the appropriate court officials shall take such action as is necessary to resolve the issue of counsel and ensure that the record affirmatively reflects that either counsel has entered an unlimited appearance for the District Courts, court-appointed counsel has been waived, or application for court-appointed counsel has been made

B) The District Attorney may develop a listing of minor traffic offenses and infractions which he agrees may be initially continued by the Clerk of Superior Court, or his designees. This specifically does NOT include Impaired Driving offenses or other matters in which a written record concerning counsel is required.

C) For motions made within 120 days of the first setting and which are made on or before the day the case is calendared for trial, the Assistant District Attorney regularly assigned to the courtroom where the case is to be tried is the appropriate court official to whom the motion should be addressed, and the Assistant District Attorney is authorized to allow the motion for good cause satisfactory to the Assistant District Attorney without further intervention by the trial judge.

D) For all motions made after 120 days from the first calendaring, the judge presiding in the courtroom to which the case has been assigned is the appropriate court official to whom the motion should be addressed.

E) Requests for continuances in misdemeanor cases more than 120 days from service of the charging documentation the defendant and made prior to the day of court on which the case is calendared, shall be made to the judge assigned to preside at that term of court, if available. If said trial judge is not available or is not known at the time the request is made, the motion for continuance shall be made to the Chief District Court Judge or her designees.

F) For any contested motion or for any motion to which the clerk or district attorney can not consent as authorized herein above, the motion must be directed to and heard by the presiding judge or the Chief District Court Judge if no judge is presiding at the time the motion needs to be heard. There shall be no ex-parte approaches to any judge for a continuance without written authorization by the opposing party.

G) Felony cases that are pending in District Court must be disposed of by plea to a lesser charge, indictment, probable cause hearing and transfer, dismissal, deferred prosecution, or by any other appropriate means within 180 days of the defendant's first appearance. Felony cases pending in District Court exceeding this time frame shall not be continued further without a finding of extraordinary cause by the presiding judge.

1.2 Court Conflicts: The various levels of court should work together to move cases as expeditiously as possible. Age of case, subject matter, and priority of setting should be given as much primacy as the level of court when resolving conflicts. Attorneys shall notify the court and opposing counsel of any other court conflict(s) as they become known and shall keep the court advised of the resolution of that conflict. All judges shall communicate with other judges to resolve such conflicts. In resolving court conflicts among the district courts, juvenile cases shall take precedence over all other matters in all other district courts unless otherwise agreed among the presiding judges.

1.3 Documentation of Continuance: All orders for continuance shall be documented in or on the file, and shall include the name of the moving party, and when appropriate, the basis for the continuance. If the motion is heard by a judge, the judge may direct the entry of the appropriate notations and findings made by any officer of the court. For continuances permissible under these rules which do not require the intervention of the judge, it shall be the responsibility of the prosecutor to document by appropriate notations and understandable symbols that identify of the moving party and any objections to the continuance if not consented to.

A) When the reason for or conditions of a continuance is that the defendant is to plead guilty, or the file is marked "last continuance," the Assistant District Attorney shall so note on the outside of the file and in a prominent manner. In such cases, the attorney representing the defendant, or the defendant shall, on the new trial date, and prior to any trial or motion in the case, bring this to the attention of the Assistant District Attorney.

1.4 Notification of Opposing Counsel/Unrepresented Parties/Witnesses All requests for continuance shall be made as soon as a conflict is identified, and all impacted-opposing counsel, unrepresented parties, subpoenaed witnesses, or court staff charged with subpoenaing witness-shall be notified as soon as possible

1.5 Objections to Motion for Continuance All parties should have an opportunity to be heard on a motion to continue.

1.6 Evaluations of Motions for Continuance Factors to be considered by the appropriate official when deciding whether to grant or deny a motion for continuance should include:

A) the opportunity to exercise the right to effective assistantance of counsel;

B) the age of the case and seriousness of the charge;

C) the incarceration status of the defendant;

D) the effect on children and spouses if the issue is continued and not resolved;

E) the impact of the continuance on the safety of the parties or any other persons;

F) the status of the trial calendar for the session;

G) the number and grounds for previous continuances;

H) the due diligence of counsel in promptly making a motion for continuance as soon as practicable and notifying opposing counsel and witnesses;

I) the period of delay caused by the continuance requested;

J) the presence of witnesses and availability of witnesses for future sessions;

K) whether the basis of the motion is the existence of a legitimate conflict with another court setting;

L) for whom previous continuance(s) were granted;

M) the availability of counsel;

N) consideration of the financial consequences to the public, the parties and witnesses if the case is continued; and

O) any other factor that promotes the fair administration of justice

1.7 Case Rescheduling Upon granting a motion for continuance, the judge shall reschedule the case, taking into consideration the availability of counsel, defendant(s), witnesses, courtroom space, and other necessary resources.

1.8 Time Standards All non-felony criminal, motor vehicle and other infraction cases should be disposed of within 120 days from the first appearance in District Court. Felony cases should be resolved or transferred from District Court within 180 days from the first appearance in District Court.

N.C. R. Prac. Sup. & Dist. Ct. Civ. P. 1

Amended effective 8/15/2022.