IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-115

No. 54A19-3

Filed 4 November 2022

STATE OF NORTH CAROLINA

v.

ROGELIO ALBINO DIAZ-TOMAS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 271 N.C. App. 97 (2020), affirming an order denying defendant’s 

petition for writ of certiorari entered on 24 July 2019 by Judge Paul C. Ridgeway in 

Superior Court, Wake County. On 15 December 2020, the Supreme Court allowed 

defendant’s petition for discretionary review as to additional issues. Heard in the 

Supreme Court on 6 January 2022.

Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney 

General, for the State-appellee.

Anton M. Lebedev for defendant-appellant.

MORGAN, Justice.

¶ 1 Defendant appeals from a divided opinion of the Court of Appeals, 271 N.C. 

App. 97 (2020), in which the Court of Appeals affirmed an order of the Superior Court, 

Wake County, denying defendant’s petition for writ of certiorari. Defendant’s petition 

for writ of certiorari requested that the superior court review an order of the District 

Court, Wake County, in which that court denied defendant’s Motion to Reinstate 
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Charges. Defendant’s Motion to Reinstate Charges asked that the District Court 

reinstate, and place on the trial court’s calendar, several criminal charges with which 

defendant had been charged which had been “dismissed with leave” by the district 

attorney’s office pursuant to N.C.G.S. § 15A-932(a)(2) due to defendant’s failure to 

appear before the trial court as ordered. The Court of Appeals determined that only 

the Superior Court’s order denying defendant’s certiorari petition, and not the 

District Court’s order denying defendant’s Motion to Reinstate Charges, was properly 

before the appellate court due to the limited nature of the Court of Appeals’

discretionary allowance of defendant’s certiorari petition before the lower appellate 

court. State v. Diaz-Tomas, 271 N.C. App. 97, 102 (2020). A dissenting opinion was 

filed in the matter in which the dissenting judge at the Court of Appeals considered 

the Superior Court to have erred in denying defendant’s petition for writ of certiorari

to review the order of the District Court. Id. at 103 (Zachary, J., concurring in part 

and dissenting in part). Defendant timely filed notice of appeal to this Court based 

upon the dissenting opinion. Therefore, an issue presented for our determination here 

is whether the Superior Court properly denied defendant’s petition for writ of 

certiorari. This Court additionally allowed defendant’s conditional petition for writ of 

certiorari to review the decision of the Court of Appeals, as well as defendant’s 

conditional petition for writ of certiorari to review the order denying his 

aforementioned Motion to Reinstate Charges. In sum, this Court is positioned to 
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contemplate and resolve defendant’s contentions regarding his ability to compel the 

reinstatement of his dismissed criminal charges and to compel the placement of these 

matters on a trial court’s criminal case calendar for disposition. We hold that a 

criminal defendant does not possess the right to compel the district attorney, who has 

the authority to place the defendant’s unresolved criminal charges in a dismissedwith-leave status, to reinstate the dismissed charges and to place the charges on a 

trial court’s criminal case calendar for resolution. We also hold that a trial court lacks

the authority to order that criminal charges which have been dismissed with leave 

by the duly empowered district attorney be reinstated and placed on a trial court’s 

criminal case calendar against the will of the district attorney. This Court therefore 

affirms the decision of the Court of Appeals which affirms the Superior Court’s denial 

of defendant’s petition for writ of certiorari. 

¶ 2 Defendant also filed a petition for discretionary review which this Court 

allowed in part and denied in part by way of a special order entered on 15 December 

2020, in which we opted to consider additional issues presented by defendant as to

whether this Court and the Court of Appeals erred in declining to issue writs of 

mandamus to the District Attorney of Wake County and the District Court, Wake 

County, in order to effect defendant’s desired outcome which he originally sought in 

the trial court and which he pursued through his initial Motion to Reinstate Charges. 

We take this opportunity to reaffirm the clear and well-settled principle of law which 
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establishes that the extraordinary and discretionary writ of mandamus shall issue 

only when the subject of the writ invokes a legal duty to act or to forebear from acting.

This recognition, coupled with our determination that the remaining issues contained

in defendant’s petition for discretionary review are either academic in nature or are 

rendered moot by this Court’s allowance of defendant’s multiple petitions for writ of 

certiorari, obliges us to view defendant’s petition for discretionary review as 

improvidently allowed.

I. Factual and Procedural Background

¶ 3 Defendant received a citation from an officer with the Raleigh Police 

Department charging him with the offenses of driving while impaired and driving 

without an operator’s license on 4 April 2015. Defendant failed to appear for 

defendant’s scheduled court date in the District Court, Wake County, on 24 February 

2016, and on the following day, the trial court issued an order for defendant’s arrest.

While defendant’s whereabouts were still unknown, the State dismissed defendant’s 

charges with leave under the statutory authority and procedure of N.C.G.S. § 15A932(a)(2) on 11 July 2016. While it appears that defendant did not possess a valid 

driver’s license issued by the North Carolina Division of Motor Vehicles at the time 

of his 4 April 2015 charges, defendant’s ability to apply for and to receive a valid 

North Carolina driver’s license was indefinitely foreclosed as the result of his failure 

to appear for his 24 February 2016 court date and the State’s dismissal of his charges 
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with leave. On 24 July 2018, defendant was arrested in Davidson County and served 

with the order for arrest which had resulted from his previous failure to appear in 

court in Wake County. Defendant was given a new Wake County court date of 9 

November 2018; however, defendant again failed to appear as scheduled in the 

District Court, Wake County, and a second order for defendant’s arrest was issued on 

13 November 2018. Defendant was arrested on 12 December 2018 pursuant to the 

second order for arrest, and was given another court date in the District Court, Wake 

County, of 18 January 2019. However, defendant’s court date was “advanced,” or 

moved to an earlier date, and was set for the 14 December 2018 administrative 

session of the District Court, Wake County. 

¶ 4 Defendant appeared for the 14 December 2018 administrative session of the 

District Court, Wake County, but the assistant district attorney declined to 

reinstate—in other words, to bring out of dismissed-with-leave status—defendant’s 

two unresolved charges. Defendant therefore filed a Motion to Reinstate Charges in 

District Court on 28 January 2019. In his motion, defendant made several arguments 

addressing the claimed “duty,” “inherent authority,” and “mandate” of the District 

Court either to reinstate or to permanently dismiss defendant’s outstanding charges. 

The motion was accompanied by two affidavits executed by licensed attorneys 

practicing in Wake County who both represented that it was the regular practice of 

the Wake County District Attorney’s Office to decline to reinstate charges which had 
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been placed in dismissed-with-leave status due to a defendant’s failure to appear,

unless the defendant agrees to plead guilty to the dismissed charges while 

simultaneously waiving the defendant’s right to appeal these convictions to the 

Superior Court for a trial de novo. On 7 June 2019, defendant filed a document in the 

District Court, Wake County, captioned “Request for Prompt Adjudication of 

Defendant’s Motion to Reinstate Charges” in which defendant asked the tribunal “to 

promptly adjudicate his previously filed Motion to Reinstate Charges” in light of the 

District Attorney’s position. The chief district court judge responded to the filing, in 

a letter to defense counsel and the prosecutor dated 10 June 2019, that defendant’s 

motion presented only questions of law, that an evidentiary hearing would not be 

required, and that the chief district court judge would consider any supportive filings 

by the parties “in arriving at a ruling in this matter.”

¶ 5 The District Court, Wake County, entered an order on 15 July 2019 denying 

defendant’s Motion to Reinstate Charges.1 The District Court determined that “the 

State exercised its discretion and acted within its statutory authority pursuant to 

N.C.G.S. § 15A-932 by entering a dismissal with leave . . . after [d]efendant failed to 

appear for his regularly scheduled court date.” The District Court explained that the 

 

1 During the interim period between the filing of defendant’s motion and the District 

Court’s ruling in the matter, defendant filed a Petition for Writ of Mandamus with this Court 

on 11 February 2019, which was promptly denied by this Court by an order dated 26 February 

2019.
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statutory language provided that in the event that a defendant is presented to the 

forum after failing to appear, “the prosecutor may reinstate the proceedings by filing 

written notice with the clerk,” quoting the exact language of subsection (d) of N.C.G.S. 

§ 15A-932 and adding emphasis to the permissive term “may.” See N.C.G.S. § 15A932(d) (2021). Because the presence of the word “may” in N.C.G.S. § 15A-932(d)

“clearly indicates . . . that discretion to reinstate charges previously dismissed with 

leave lies solely with the prosecutor,” the District Court reasoned that the district 

attorney’s office had “exercised its discretion and acted within its statutory authority 

. . . by declining to reinstate the charges in this matter.” The District Court further 

opined that this Court’s directives in State v. Camacho, 329 N.C. 589 (1991),

prohibited the trial court from invading the province of the “independently elected 

constitutional officer”—namely, the District Attorney and this official’s

subordinates—by having “criminal charges reinstated upon demand.” The District 

Court concluded

[t]hat for the court to reinstate the charges and mandate 

that the District Attorney prosecute the [d]efendant, as 

requested by [d]efendant in his motion, . . . an 

unauthorized and impermissible interference with the 

District Attorney’s performance of constitutional and 

statutory duties, which only the District Attorney or her 

lawful designees may perform, [would occur].

¶ 6 On 22 July 2019, defendant filed a petition for writ of certiorari in the Superior 

Court, Wake County, seeking a full review of the District Court’s order which denied
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his motion. The Superior Court denied defendant’s petition in an order dated 24 July

2019, explaining that a writ of certiorari was a discretionary writ “to be issued only 

for good or sufficient cause shown,” quoting Womble v. Moncure Mill & Gin Co., 194 

N.C. 577, 579 (1927), and finding that defendant had failed to present such good or 

sufficient cause to warrant certiorari review. The Superior Court further found that 

defendant was “not entitled to the relief requested.” Defendant next petitioned the 

Court of Appeals for writ of certiorari, requesting that the lower appellate court 

review both the District Court’s order denying his Motion to Reinstate Charges as 

well as the Superior Court’s order denying his petition for writ of certiorari. The Court 

of Appeals allowed defendant’s petition on 15 August 2019 for the limited purpose of 

reviewing the Superior Court’s denial of defendant’s petition for writ of certiorari.

¶ 7 The Court of Appeals issued a divided, published opinion on 21 April 2020, 

affirming the Superior Court’s denial of defendant’s certiorari petition. Diaz-Tomas, 

271 N.C. App. at 102. In light of the longstanding case law from this Court 

institutionalizing the principle that “[c]ertiorari is a discretionary writ, to be issued 

only for good or sufficient cause shown” which defendant candidly recognized in his 

appellate presentation, the Court of Appeals majority employed an abuse of discretion 

standard in assessing the correctness of the Superior Court’s denial of defendant’s 

petition. Id. at 100–01 (emphasis omitted) (quoting Womble, 194 N.C. at 579). The 

lower appellate court determined that defendant failed to meet his “burden of 
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showing that the decision of the Superior Court in denying his petition for certiorari 

was ‘manifestly unsupported by reason or is so arbitrary that it could not have been 

the result of a reasoned decision.’ ” Id. at 101 (quoting State v. Hennis, 323 N.C. 279, 

285 (1988)). Although defendant asserted that he was entitled to the writ because he 

had presented “appropriate circumstances” and “compelling” reasons for certiorari to 

be granted by the Superior Court, the Court of Appeals majority concluded that “[i]t 

is not enough that [defendant] disagree with it, or argue — incorrectly — that the 

trial court was obligated to grant his petition” in order to show an abuse of discretion. 

Id. at 101. Instead, “[d]efendant has to show that the Superior Court’s decision was 

unsupported by reason or otherwise entirely arbitrary.” Id. at 101. After all, a writ of 

certiorari “is not one to which the moving party is entitled as a matter of right.” Id.

at 100 (quoting Womble, 194 N.C. at 579).

¶ 8 The dissenting opinion disagreed with the view of the Court of Appeals 

majority that defendant had failed to show an abuse of discretion in the Superior 

Court’s denial of defendant’s petition for writ of certiorari. Id. at 106 (Zachary, J.,

concurring in part and dissenting in part). The dissent ventured that the Superior 

Court had provided no particular reason for the denial of defendant’s petition other 

than the bare observations that defendant had failed to show “sufficient cause,” for 

the allowance of the writ and that defendant otherwise possessed “no other avenue 

to seek redress” for “alleg[ed] statutory and constitutional violations akin to those at 
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issue in Klopfer [v. North Carolina, 386 U.S. 213 (1967)] and Simeon [v. Hardin, 339 

N.C. 358 (1994)].” Id. at 108–11 (Zachary, J., concurring in part and dissenting in 

part). Because article I, section 18 of the North Carolina Constitution guarantees 

“access to the court to apply for redress of injury,” the Court of Appeals dissent opined 

that the Superior Court should have allowed defendant’s petition for writ of certiorari 

in order to accord defendant his sole remaining route to review an apparent “no 

bargain”: either to accept the outcome that his unresolved criminal charges would 

remain in dismissed-with-leave status without defendant’s ability to regain his 

driver’s license or to plead guilty as charged while simultaneously waiving his right 

to appeal for a trial de novo. Id. at 110 (Zachary, J., concurring in part and dissenting 

in part) (quoting Simeon, 339 N.C. at 378).

II. Analysis

A. Discretion of the District Attorney Under N.C.G.S. § 15A-932

¶ 9 In order to resolve this case, we first consider the issue of whether a district 

attorney may be compelled to reinstate charges under the statutory procedure 

described in N.C.G.S. § 15A-932. In Camacho, this Court observed that

[t]he several District Attorneys of the State are 

independent constitutional officers, elected in their 

districts by the qualified voters thereof, and their special 

duties are prescribed by the Constitution of North Carolina 

and by statutes. Our Constitution expressly provides that: 

“The District Attorney shall be responsible for the 

prosecution on behalf of the State of all criminal actions in 

the Superior Courts of his district.” The clear mandate of 
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that provision is that the responsibility and authority to 

prosecute all criminal actions in the superior courts is 

vested solely in the several District Attorneys of the State.

Camacho, 329 N.C. at 593 (extraneity omitted) (quoting N.C. Const. art. IV, § 18).

Prosecution of criminal offenses is the “sole and exclusive responsibility” of the duly 

elected district attorneys of the state. In re Spivey, 345 N.C. 404, 409 (1997). The 

General Assembly possesses the authority to frame the duties of a district attorney 

as the legislative body has established in N.C.G.S. § 7A-61, and one such duty 

includes the obligation to “prosecute in a timely manner in the name of the State all 

criminal actions.” N.C.G.S. § 7A-61 (2021). The General Assembly’s dictate that 

criminal prosecutions must be executed in a “timely manner” serves to reiterate the 

North Carolina Constitution’s grant of exclusive authority to the state’s district 

attorneys regarding the prompt handling, scheduling, and disposition of criminal 

charges which are brought against alleged violators of the law. In the present case, 

the elected District Attorney initially satisfied the mandates of the office’s duties in 

handling defendant’s criminal charges by timely scheduling defendant’s matters for 

disposition in the name of the State by placing them on a court calendar pursuant to 

the prosecutor’s constitutional responsibility and authority to do so in the official’s 

sole and exclusive power.

¶ 10 Section 15A-932 establishes the procedure by which the General Assembly has 

enabled the state’s district attorneys to enter a criminal case’s “[d]ismissal with leave 
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. . . when a defendant . . . [f]ails to appear . . . and cannot readily be found.” N.C.G.S. 

§ 15A-932(a) (2021). This statute empowers a district attorney or the officeholder’s

designee to place a pending criminal charge in dismissed-with-leave status either 

“orally in open court or by filing the dismissal in writing with the clerk,” which has 

the effect of removing “the case from the docket of the court.” N.C.G.S. § 15A-932(b)–

(c). Although the case is removed from the docket of the trial court, and thus is not 

calendared before the trial court on a routine basis as an active criminal charge would 

be, nonetheless “all process outstanding retains its validity, and all necessary actions 

to apprehend the defendant, investigate the case, or otherwise further its prosecution 

may be taken, including the issuance of nontestimonial identification orders, search 

warrants, new process, initiation of extradition proceedings, and the like.” N.C.G.S. 

§ 15A-932(b). 

¶ 11 Of additional relevance to defendant’s current appeal, the General Assembly 

has directed the Division of Motor Vehicles to revoke a defendant’s driving privileges 

upon receiving “notice from a court that the person was charged with a motor vehicle 

offense and . . . failed to appear.” N.C.G.S. § 20-24.1(a) (2021). The statute goes on to 

provide that:

(b) A license revoked under this section remains revoked 

until the person whose license has been revoked:

(1) disposes of the charge in the trial division in 

which he failed to appear when the case was last 

called for trial or hearing[.]
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N.C.G.S. § 20-24.1(b). In order to “dispose[ ] of the charge in the trial division,”

N.C.G.S. § 20-24.1(b), the charge must be reinstated in order to be placed back on the 

trial court docket, because when a district attorney places a charge in dismissed-withleave status, it “results in removal of the case from the docket of the court,” N.C.G.S. 

§ 15A-932(b). Otherwise, the case record will reflect that the defendant’s driving 

privileges remain in an indefinite state of suspension. Section 15A-932 provides a 

singular process by which a charge may be reinstated: “Upon apprehension of the 

defendant, or in the discretion of the prosecutor when he believes apprehension is 

imminent, the prosecutor may reinstitute the proceedings by filing written notice 

with the clerk” of court. N.C.G.S. § 15A-932(d) (emphasis added). 

¶ 12 “Ordinarily when the word ‘may’ is used in a statute, it will be construed as 

permissive and not mandatory.” In re Hardy, 294 N.C. 90, 97 (1978). Settled 

principles of statutory construction constrain this Court to hold that the use of the 

word “may” in N.C.G.S. § 15A-932(d) grants exclusive and discretionary power to the 

state’s district attorneys to reinstate criminal charges once those charges have been 

dismissed with leave following a defendant’s failure to appear in court to respond to 

them. In conjunction with our determination, it is worthy of note that the General 

Assembly created a single statutory exception in N.C.G.S. § 15A-932(d1) to the 

requirement that a district attorney exercise the official’s discretion to “reinstitute 

the proceedings” in order to dispose of the charges which have been dismissed with 
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leave, while simultaneously empowering a defendant to activate dormant charges, 

without the involvement of a district attorney, which have been placed in dismissedwith-leave status. Subsection 15A-932(d1) states, in pertinent part:

If the proceeding was dismissed pursuant to subdivision (2) 

of subsection (a) of this section [for failing to appear at a 

criminal proceeding at which his attendance is required, 

and the prosecutor believes the defendant cannot be 

readily found] . . . and the defendant later tenders to the 

court that waiver and payment in full of all applicable 

fines, costs, and fees, the clerk shall accept said waiver and 

payment without need for a written reinstatement from the 

prosecutor. Upon disposition of the case pursuant to this 

subsection, the clerk shall recall any outstanding criminal 

process in the case . . . .

N.C.G.S. § 15A-932(d1). Contrary to defendant’s argument that he was entitled to the 

automatic reactivation of defendant’s criminal charges by the District Attorney upon 

defendant’s chosen time to be available to the trial court to respond to defendant’s 

charges which had been dismissed with leave after defendant’s multiple failures to 

appear in court to respond to said charges when they were calendared on the trial 

court docket, the General Assembly has expressly designated in N.C.G.S. § 15A932(d) and (d1) the narrow, specified ways in which criminal charges which have been 

placed in dismissed-with-leave status can be resolved.

¶ 13 In light of the cited constitutional, statutory, and appellate case law authorities 

which are all in clear and unequivocal tandem with one another, a district attorney 

cannot be compelled to reinstate the charges, due to the official’s recognized exclusive 
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and discretionary power to reinstate criminal charges once those charges have been 

dismissed with leave following a defendant’s failure to appear in court to respond to 

the charges when calendared on a trial court docket.

B. Authority of the Trial Court to Reinstate Charges

¶ 14 In his Motion to Reinstate Charges in District Court, defendant asked the trial 

tribunal to reinstate his criminal charges that were dismissed with leave by the State, 

to set a court date for his criminal matters, and to grant defendant any other and 

further relief that the District Court deemed to be just and proper given the 

circumstances. 

¶ 15 The trial courts of this state enjoy broad authority to control the conduct of 

trial and the decorum of the courtroom within statutory and constitutional 

boundaries. See Shute v. Fisher, 270 N.C. 247, 253 (1967) (“It is impractical and would 

be almost impossible to have legislation or rules governing all questions that may 

arise on the trial of a case. Unexpected developments, especially in the field of 

procedure, frequently occur. When there is no statutory provision or well recognized 

rule applicable, the presiding judge is empowered to exercise his discretion in the 

interest of efficiency, practicality and justice.”); State v. Rankin, 312 N.C. 592, 598 

(1985) (“[A] trial judge has the duty to supervise and control the course and conduct 

of a trial, and that in order to discharge that duty he is invested with broad 

discretionary powers.”); accord M.E. v. T.J., 380 N.C. 539, 2022-NCSC-23, ¶ 42.
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However, this Court has not ever held that, despite a trial court’s wide and 

entrenched authority to govern proceedings before it as the trial court manages 

various and sundry matters, a trial court may invade the purview of the exclusive

and discretionary power of a district attorney which was granted to the official 

through the provisions of the North Carolina Constitution and the statutory laws 

enacted by the General Assembly, absent a determination that the prosecutorial 

discretion was “being applied in an unconstitutional manner.” Simeon, 339 N.C. at 

378. As we have explained, 

it must be remembered that the elected District Attorneys 

of North Carolina are constitutional officers of the State 

whose duties and responsibilities are in large part 

constitutionally and statutorily mandated. The courts of 

this State, including this Court, must, at the very least, 

make every possible effort to avoid unnecessarily 

interfering with the District Attorneys in their 

performance of such duties. Therefore, any order tending 

to infringe upon the constitutional powers and duties of an 

elected District Attorney must be drawn as narrowly as 

possible.

Camacho, 329 N.C. at 595.

¶ 16 In the instant case, the district attorney’s office exercised its exclusive 

authority and discretion regarding its constitutional responsibility to prosecute 

criminal actions when, on 14 December 2018, it declined to reinstate defendant’s 

charges when defendant belatedly presented himself in court after his second failure 

to appear in court on the alleged offenses. Since defendant’s requests of the District 
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Court in his motion to reinstate his “dismissed with leave” criminal charges would 

have the effect, if granted by the District Court, of infringing upon the constitutional 

powers and duties of a district attorney as disapproved by Camacho, we hold that the 

trial tribunal did not err in denying defendant’s Motion to Reinstate Charges in 

District Court. The District Court’s allowance of defendant’s motion also would have 

contravened our admonition to the courts of this state, as we announced in Camacho, 

to “draw[ ] as narrowly as possible” any curtailment of a district attorney’s 

constitutional powers and duties. Id.

¶ 17 Defendant argues that N.C.G.S. § 20-24.1(b1) affords him “an absolute 

statutory right to have the matter reinstated for a prompt trial or hearing.” Despite 

this bald assertion, N.C.G.S. § 20-24.1(b1) contains no mention of the reinstatement 

of criminal charges. Subsection 20-24.1(b1) states in its entirety: “A defendant must 

be afforded an opportunity for a trial or a hearing within a reasonable time of the 

defendant’s appearance. Upon motion of a defendant, the court must order that a 

hearing or a trial be heard within a reasonable time.” N.C.G.S. § 20-24.1(b1). 

Defendant conveniently construes the term “appearance” to leniently apply to the 

eventual presentation of himself—whenever that may be—at a calendared session of 

the trial court after defendant has failed to appear for court when his criminal 

charges were originally scheduled for resolution within a reasonable time. After 

failing to appear for court on two scheduled opportunities to resolve his criminal 
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charges when the District Attorney placed defendant’s charges on a trial court docket 

for resolution within a reasonable time, defendant’s insistence pursuant to his 

construction of N.C.G.S. § 20-24.1(b1) upon the reinstatement of his charges by the 

District Attorney or by the District Court “for a trial or a hearing within a reasonable 

time of the defendant’s appearance” rings hollow when defendant did not come to 

court to respond to the criminal charges until nearly three years had passed since his 

original court date. Firstly, as previously stated, the allowance of defendant’s demand 

that his “dismissed with leave” charges be activated would offend the delegated 

exclusive and discretionary power of the District Attorney to reinstate defendant’s 

criminal charges after the charges were dismissed with leave due to defendant’s 

failure to appear in court to answer to the charges. And secondly, if this Court were 

to interpret N.C.G.S. § 20-24.1(b1) as defendant contends, then we would ignore the 

identical caution which we articulated in Camacho for the state courts with regard to 

the philosophy to “make every possible effort to avoid unnecessarily interfering with 

the District Attorneys in their performance of [constitutionally and statutorily 

mandated] duties,” such that “any order tending to infringe upon the constitutional 

powers and duties of an elected District Attorney must be drawn as narrowly as 

possible.” See Camacho, 329 N.C. at 595. Accordingly, defendant’s argument that 

N.C.G.S. § 20-24.1(b1) gives him “an absolute statutory right to have the matter 

reinstated for a prompt trial or hearing” is without merit. 
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C. Discretion of the Superior Court to Deny Certiorari Petitions

¶ 18 A criminal defendant may seek certiorari review “when provided for by [the 

Criminal Procedure Act], by other rules of law, or by rule of the appellate division.” 

N.C.G.S. § 15A-1444(g) (2021). “The authority of a superior court to grant the writ of 

certiorari in appropriate cases is, we believe, analogous to the Court of Appeals’ power 

to issue a writ of certiorari,” in the context of the Superior Court’s review of a lower 

tribunal’s action. State v. Hamrick, 110 N.C. App. 60, 65, appeal dismissed, 

discretionary review denied, 334 N.C. 436 (1993). A writ of certiorari is “an 

extraordinary remedial writ to correct errors of law,” Button v. Level Four Orthotics 

& Prosthetics, Inc., 380 N.C. 459, 2022-NCSC-19, ¶ 19 (emphasis added) (quoting 

State v. Simmington, 235 N.C. 612, 613 (1952)), and its issuance is only appropriate 

when a defendant has shown merit in his arguments concerning the action to be 

reviewed or that “error was probably committed below,” State v. Ricks, 378 N.C. 737, 

2021-NCSC-116, ¶ 6 (quoting State v. Grundler, 251 N.C. 177, 189 (1959)). A writ of

certiorari “is not one to which the moving party is entitled as a matter of right.” State 

v. Walker, 245 N.C. 658, 659 (1957), cert. denied, 356 U.S. 946 (1958); see Surratt v. 

State, 276 N.C. 725, 726 (1970) (per curiam) (holding that the Court of Appeals was 

errorless in denying certiorari review of a trial court’s denial of a habeas corpus 

petition because such judgment was “reviewable only by way of certiorari if the court 

in its discretion chooses to grant such writ” (second emphasis added)). The only 
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exception to the entirely discretionary nature of certiorari review is the circumstance 

of a criminal defendant’s loss of the right to appeal “due to some error or act of the 

court or its officers, and not to any fault or neglect of the [defendant].” State v. Moore, 

210 N.C. 686, 691 (1936).

¶ 19 As we have determined, the District Attorney could not be compelled either by 

demand of defendant or by order of the District Court to reinstate defendant’s charges 

which had been placed in the status of “dismissed with leave” after defendant had 

failed to appear in court as scheduled in order to respond to the criminal allegations 

against defendant. As we have further concluded, the District Court properly denied 

defendant’s Motion to Reinstate Charges in District Court. Consequently, defendant 

failed to demonstrate that there was merit in his arguments or that error was 

probably committed by the District Court so as to qualify for the Superior Court’s 

issuance of the extraordinary remedial writ in order for the Superior Court to correct, 

through certiorari review, any errors committed by the District Court. The Superior 

Court expressly and correctly based its decision to deny defendant’s petition for writ 

of certiorari on its accurate determination that “[d]efendant has failed to provide 

‘sufficient cause’ to support the granting of his [p]etition” and that “[d]efendant is not 

entitled to the relief requested.” Therefore, the Superior Court properly acted within 

its discretion in denying defendant’s petition for writ of certiorari.

D. Denial of the Petitions for a Writ of Mandamus
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¶ 20 Along with defendant’s efforts to obtain the reinstatement of his criminal 

charges before the District and Superior Courts of Wake County, coupled with 

defendant’s desire to obtain appellate review of both courts’ respective denials of 

those efforts before the Court of Appeals, defendant filed multiple, duplicative 

petitions for a writ of mandamus before the Court of Appeals and this Court. “A writ 

of mandamus is an extraordinary court order to ‘a board, corporation, inferior court, 

officer or person commanding the performance of a specified official duty imposed by 

law.’ ” In re T.H.T., 362 N.C. 446, 453 (2008) (quoting Sutton v. Figgatt, 280 N.C. 89, 

93 (1971)). In order to obtain the extraordinary relief provided by a writ of mandamus, 

the petitioner must demonstrate: (1) that the petitioner possesses a clear and 

established legal right to the act to be commanded; (2) that the party who is 

potentially subject to the writ has a clear and undebatable legal duty to perform the 

act requested in the petition; (3) that the act requested in the petition is ministerial 

in nature and does not involve exercising the discretion of the party who is potentially 

subject to the writ2; and (4) that the party who is potentially subject to the writ has, 

after the expiration of the appropriate time for the performance of the act requested 

in the petition, failed to perform the act requested. Id. at 453–54. In any event, a writ 

of “mandamus may not be used as a substitute for an appeal.” Snow v. N.C. Bd. of 

 

2 “Nevertheless, a court may issue a writ of mandamus to a public official compelling 

the official to make a discretionary decision, as long as the court does not require a particular 

result.” In re T.H.T., 362 N.C. 446, 454 (2008). 
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Architecture, 273 N.C. 559, 570 (1968). The examination which we have already 

employed in assessing defendant’s multiple theories and arguments regarding his 

claimed right to the reinstatement of his criminal charges after they were placed in 

the status of “dismissed with leave” due to defendant’s failure to appear in court when 

scheduled similarly applies regarding defendant’s petition for the extraordinary writ 

of mandamus. Defendant fails to satisfy any of the elements for the appellate courts’

issuance of a writ of mandamus because he does not have a right to compel the 

activation of his charges which have been dismissed with leave or to require the 

exercise of discretionary authority to fit his demand for prosecutorial action regarding 

his charges. Defendant’s petitions for a writ of mandamus are properly denied.

E. Klopfer, Simeon Distinguished

¶ 21 In the case of Klopfer v. North Carolina (Klopfer II), 386 U.S. 213 (1967), the 

Supreme Court of the United States granted a writ of certiorari to review the decision 

of this Court in State v. Klopfer (Klopfer I), 266 N.C. 349 (1966). In Klopfer I, this 

Court affirmed a trial court’s order which tacitly allowed a prosecutor to utilize a 

procedural rule which bore some similarity to the dismissal-with-leave procedure 

employed in the case at bar. The procedure in Klopfer, known as a “nolle prosequi

with leave,” allowed prosecutors to effectively pause their prosecution of a crime by 

releasing a defendant from the accused’s responsibility to appear for any further court 

dates while simultaneously maintaining the legitimacy of an indictment filed against 
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the defendant. Klopfer II, 368 U.S. at 214. “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.” Id. (quoting Wilkinson v. 

Wilkinson, 159 N.C. 265, 266–67 (1912)). Over defendant Klopfer’s objection, the 

State moved the trial court for permission to take a nolle prosequi with leave after a 

first attempt to prosecute defendant for a trespassing charge which had resulted in a 

hung jury. Id. at 217–18. The trial court granted the State’s motion. Id. at 218. 

Defendant Klopfer appealed the trial court’s grant of the State’s motion to enter a 

nolle prosequi to this Court, asserting that the effect of the nolle prosequi procedure 

of pausing the prosecution of his alleged crime, without disposing of the charge itself,

violated his Sixth Amendment right to a speedy trial as it was applied to the 

individual states through the Fourteenth Amendment. Id. This Court affirmed the 

trial court’s order granting the State’s nolle prosequi motion and held that the State 

had “followed the customary procedure” to obtain the trial court’s permission to enter 

a nolle prosequi in the defendant’s case. Klopfer I, 266 N.C. at 351. This Court 

reasoned that 

[w]ithout 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 
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effort.

Id. at 350.

¶ 22 The Supreme Court of the United States reversed the decision of this Court 

and remanded the case to the North Carolina courts for proceedings not inconsistent 

with its opinion. Klopfer II, 386 U.S. at 226. The high court opined:

The North Carolina Supreme Court’s conclusion—

that the right to a speedy trial does not afford affirmative 

protection against an unjustified postponement of trial for 

an accused discharged from custody—has been explicitly 

rejected by every other state court which has considered 

the question. That conclusion has also been implicitly 

rejected by the numerous courts which have held that a 

nolle prossed indictment may not be reinstated at a 

subsequent term.

We, too, believe that the position taken by the court 

below was erroneous. The petitioner is not relieved of the 

limitations placed upon his liberty by this prosecution 

merely because its suspension permits him to go 

“whithersoever he will.” The pendency of the indictment 

may subject him to public scorn and deprive him of 

employment, and almost certainly will force curtailment of 

his speech, associations and participation in unpopular 

causes. By indefinitely prolonging this oppression, as well 

as the “anxiety and concern accompanying public 

accusation,” the criminal procedure condoned in this case 

by the Supreme Court of North Carolina clearly denies the 

petitioner the right to a speedy trial which we hold is 

guaranteed to him by the Sixth Amendment of the 

Constitution of the United States.

Id. at 219–22 (footnotes omitted).

¶ 23 The dissenting opinion of the Court of Appeals in this case adopted the view 
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that the Superior Court erred in denying defendant’s petition for writ of certiorari, 

citing the outcome of Klopfer II in the Supreme Court of the United States and the 

outcome of Simeon3 in this Court as representative of the legal issues for which 

defendant should have been afforded further review regarding his inability to obtain 

a trial or hearing to resolve his criminal charges which the District Attorney 

maintained in dismissed-with-leave status. Diaz-Tomas, 271 N.C. App. at 110 

(Zachary, J., concurring in part and dissenting in part). However, both cases are 

readily distinguishable from the current case in the salient respect that in Klopfer II

and in Simeon, the District Attorney was recognized to be in a position, based on the 

facts presented in those respective cases, to tactically utilize the official’s 

prosecutorial discretion to prevent a defendant who continually sought to resolve his 

active criminal charges through the defendant’s consistent availability to the trial 

court from doing so; alternatively, in the present case, the District Attorney placed 

defendant’s criminal charges on a trial court docket for prosecution in a timely 

manner on multiple occasions while defendant continually sought to evade the 

 

3 Upon plaintiff Simeon’s allegations in his amended civil complaint that “the district 

attorney delayed calendaring [Simeon’s] case for trial for the tactical purposes of keeping him 

in jail, delaying a trial at which he was likely to be acquitted, and pressuring him into 

entering a guilty plea,” and that “the district attorney purposely delays calendaring cases for 

trial for the purpose of exacting pretrial punishments and pressuring other criminal 

defendants into pleading guilty,” this Court determined that the allegations were “sufficient 

to state a claim that the statutes which grant the district attorney calendaring authority are 

being applied in an unconstitutional manner,” and therefore “we reverse[d] the order of the 

trial court which granted defendant district attorney’s motion to dismiss and remand[ed] 

th[e] case to that court.” Simeon v. Hardin, 339 N.C. 358, 378, 379 (1994).
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resolution of his active criminal charges through his consistent unavailability to the 

trial court by failing to appear as scheduled for court until nearly three years after 

defendant’s criminal charges were placed in dismissed-with-leave status. These 

important differences between the instant case and the cases of Klopfer II and 

Simeon, which the Court of Appeals dissent cites as persuasive here, render the 

dissenting view as misguided based upon its reliance on inapplicable cases.

III. Conclusion

¶ 24 Based upon our analysis of the factual and procedural background of this case, 

this Court modifies the decision of the Court of Appeals to the extent that we affirm 

the outcome reached by the lower appellate court without prejudice to defendant to 

pursue any other legal remedy which has not been determined by this Court’s opinion. 

Discretionary review of issues which were not addressed in our review of the Court 

of Appeals majority opinion or in our discussion of the Court of Appeals dissenting 

opinion is dismissed as improvidently allowed.

AFFIRMED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY 

ALLOWED IN PART.

Justice BERGER did not participate in the consideration or decision of this 

case.