Defendant John Marvin Trent was indicted on 12 June 2001 on one count of robbery with a dangerous weapon. On 14 August 2001, he filed two motions to suppress. The motions sought to suppress the victim's identification of defendant and incriminating statements defendant made to police.
The hearing on defendant's motions to suppress commenced on 11 October 2001. The hearing was continued and resumed on 17 January 2002. After hearing evidence and arguments by counsel, the trial court stated: "Rather than rule on this right now, I'm going to review the evidence presented in greater detail, consider the authority argued and submitted by the parties and give you a ruling subsequently." At the end of these remarks, the trial court stated, "I will try to get you a ruling as soon as I reasonably can after giving it thorough consideration."
On 26 August 2002, seven months after the resumed hearing on the motions to suppress and after a new term had begun, this case came on for trial. At that time, the trial court announced in open court that defendant's motions to suppress were denied. Although the trial court stated that it informed the parties of its decision before announcing it on the opening day of the trial, nothing in the record indicates that this was done in open court during the Spring 2002 Term. Further, the State acknowledges that the written order was not filed with the Caswell County Clerk of Court until 21 August 2003, which was one year after the announcement in open court and was out of term and out of session, as those categories have been traditionally defined. Following trial, on 28 August 2002, a jury convicted defendant of robbery with a firearm, for which he was sentenced to a term of 108 to 139 months' imprisonment.
In his appeal to the Court of Appeals, defendant successfully argued that the trial court erred by denying his motions to suppress because the order was entered out of term and out of session. We agree with the decision of the Court of Appeals, and likewise conclude that, given the present circumstances, defendant is entitled to a new trial.
This Court has noted that "[t]he use of `term' has come to refer to the typical six-month assignment of superior court judges, and `session' to the typical one-week assignments within the term." Capital Outdoor Adver., Inc. v. City of Raleigh, 337 N.C. 150, 154 nn.1 & 2, 446 S.E.2d 289, 291 nn.1 & 2 (1994).
Furthermore, this Court has held that "an order of the superior court, in a criminal case, must be entered during the term, during the session, in the county and in the judicial district where the hearing was held." State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). Absent consent of the parties, an order entered in violation of these requirements is null and void and without legal effect. Id.
This Court has considered the entering of orders out of term and out of session on numerous occasions. In fact, and notably, the case depended upon most highly by defendant, Boone, 310 N.C. 284, 311 S.E.2d 552, and one of the cases relied upon by the State, State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984), were decided in opinions filed on the same day. The difference between the two cases is specifically addressed in Horner.
In Boone, the trial judge did not make a ruling on the motion to suppress in open court which was recorded as a part of the proceedings. The trial judge in Boone left the district and, after the session expired, wrote, signed, and mailed to the clerk the order denying the motion to suppress. Nothing in the trial transcript or record indicated that the trial judge had made his decision on the motion at any time in open court during the session. Here, the trial judge passed on each part of the motion to suppress in open court as it was argued.
310 N.C. at 279, 311 S.E.2d at 285 (emphasis added).
This Court's decision in State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993) further clarifies the difference between the decisions in Boone and Horner. As interpreted by this Court in Palmer, Boone stands for the proposition that an order is a nullity if "the judge did not make a ruling on the motion in court during the term, but signed the order after the term had expired." Id. at 108, 431 S.E.2d at 174. In contrast, the trial court in Horner made a ruling on the motion in open court during the term at which the motion was heard. Id. Thus, the fact that the written order was filed after the term concluded did not invalidate it. Id. at 108-09, 431 S.E.2d at 174.
In the instant case, the trial court was required to enter its ruling on defendant's motions to suppress by announcing its decision in open court or by filing its order with the Caswell County Clerk of Court during the Spring 2002 Term in which the motions were heard. The trial court announced its decision in open court some seven months after the hearing, thus failing to comply with this established precedent.
The State contends that even if the order denying defendant's motions to suppress was entered out of term and out of session, it is not void because defendant impliedly consented to such an entry. To substantiate its claim, the State points to the fact that defendant did not object either when the trial court announced that it would take the motions under advisement, or when the decision was finally announced in open court before the start of the trial. However, contrary to the State's position, the decisions of our appellate courts adequately demonstrate that defendant's failure to object does not affect the nullity of an order entered out of term and out of session. In State v. Reid, 76 N.C. App. 668, 334 S.E.2d 235 (1985), the Court of Appeals found that a defendant does not impliedly consent to the entry of an order out of term and out of session by failing to object to a trial court's decision to take the motion under advisement. Furthermore, in State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980), in which the defendant did not object to the trial court's entering of an order out of term and out of session, just as in the case at bar, this Court in essence held, ex mero motu, that a defendant's silence does not constitute implied consent. In Saults, this Court held: "[T]he order entered in this case is null and void since it was entered out of term and out of session." Id. at 325, 261 S.E.2d at 842. Moreover, this Court has clearly stated that "the consent of parties should always appear certain" to avoid "misapprehension, distrust and confusion." Bynum v. Powe, 97 N.C. 374, 378, 2 S.E. 170, 172 (1887).
Contrary to the argument offered by the State and the Court of Appeals' dissent, the presence of overwhelming evidence of defendant's guilt does not require reviewing the record for prejudicial error before a new trial is granted. In Boone, once this Court declared the order entered out of term and out of session as "being null and void and of no legal effect," the conclusion naturally follows that "the question of prejudice to the defendant is never reached." Boone, 310 N.C. at 289, 311 S.E.2d at 556. In the case at hand, the order announced and subsequently entered some seven months after the motion hearing is "null and void and of no legal effect." Id. Thus, there is no need or basis upon which to review the record for prejudicial error.
The Court of Appeals' dissent chastises the majority by saying, "[T]he trial judge was apparently required to forget that he had already heard evidence and arguments on the motion[s] and begin anew." State v. Trent, 166 N.C. App. 76, 83, 601 S.E.2d 281, 286 (2004) (Levinson, J., dissenting). However, that comment ignores the fact that the instant case represents the particular circumstance in which the same judge presides over the hearing on the motions and the trial, notwithstanding the two being in different terms and sessions. Requiring all judges to enter orders in term and in session, without exception, preserves standards, uniformity, stability, and fairness in criminal prosecution and furthers the policy motivation for the rule.
We do not embrace form over substance in adhering to this long-standing rule. The rule, although phrased in various ways in preceding cases, has invariably been applied to nullify orders which were entered out of term and out of session in both criminal and civil cases. The rationale for adhering to this rule continues to be the same as it was in an early case on this issue. In 1887 this Court, in affirming the then "well-settled" rule, recognized the General Assembly's power to prescribe the exercise of judicial jurisdiction through the use of terms and sessions stating: "This is essential to secure certainty, consistency, order and practical convenience in the due administration of public justice. Without proper regulations in these respects, disorder and confusion must inevitably prevail . . . to the detriment of the public and individuals." Bynum, 97 N.C. at 378, 380, 2 S.E. at 172 (judgment of nonsuit granted out of "term time" held to be void).
It is preferable to have trial courts enter orders on the record in the public scrutiny of open court. This is especially true in criminal cases like the one at hand. A trial court's failure to timely enter an order, even though inadvertent as in the case at bar, not only denies a defendant adequate opportunity to prepare his defense, but creates an unreasonable delay in the administration of justice.
For the foregoing reasons, defendant is entitled to a new trial.
AFFIRMED.