State v. Diaz-Tomas, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020)

In 2015, the defendant was charged with impaired driving and driving without an operator’s license. He failed to appear on the charges in 2016, which prompted the district court to issue an order for arrest and the State to dismiss the case with leave. In 2018 the defendant was arrested on the OFA, ordered to appear, and then arrested again for once more failing to appear. In January 2019 he filed a motion in district court seeking to reinstate the charges that had been dismissed with leave, which the district court denied. In July 2019, the defendant filed a petition for writ of certiorari in superior court, seeking review of the district court’s denial of his motion to reinstate the charges. The superior court denied the petition, leading the defendant to file a petition for writ of certiorari in the Court of Appeals. The Court of Appeals concluded that the superior court did not err by denying the petition. Certiorari is a discretionary writ, and the defendant did not show that the superior court’s decision was unsupported by reason or otherwise entirely arbitrary.

(2) The defendant also filed two other petitions in the Court of Appeals: a writ of mandamus seeking to compel the district court to grant his motion to reinstate the charges, and a motion asking the court to take judicial notice of the Wake County Local Judicial Rules. As to the writ of mandamus, the Court of Appeals concluded over a dissent that it was improper for two reasons—first, that it was being used as a substitute for an appeal or certiorari, and second that it should have been filed in superior court, not the appellate division. As to the motion to take judicial notice, the court did not need to resolve it to decide the case. Finally, the Court of Appeals declined to consider the defendant’s argument that the district court erred by denying his motion to reinstate charges, unanimously concluding that the issue was not properly before the court.

A judge dissenting in part included additional facts about the procedural history of the case. After the defendant’s initial failures to appear, he did appear when his case was calendared as an “add-on” case in December 2018, but the State declined to reinstate the charges. The dissenting judge agreed with the majority that mandamus was not the proper remedy, but she would have concluded that the superior abused its discretion by denying the petition for writ of certiorari. In the absence of an order from superior court revealing the basis for its rationale in denying the petition, and in light of the defendant’s allegations, which she described as “cogent” and “well-supported,” she would have remanded the case for a hearing and decision on the merits.