dissent">Judge WELLS

dissenting.

On the issue of speedy trial, I respectfully dissent.

Prior to the trial at which she was convicted and sentenced, defendant filed a motion to dismiss for denial of a speedy trial. That motion was heard on 12 February 1991 by Judge Wiley F. Bowen and was determined as follows:

THIS Matter coming before the undersigned Judge of the Superior Court of Johnston County upon defendant’s motion to dismiss this cause on the grounds that she has been denied her constitutional rights to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States and under Article I, Section 19 of the North Carolina Constitution, the Court, following an evidentiary hearing, makes the following

*83Findings of Fact:

1. The defendant was arrested on a warrant charging her with murder on or about November 13, 1989. On January 29, 1990, the defendant was indicted for first-degree murder by the Grand Jury of Johnston County.

2. The District Attorney’s office placed this case on the trial calendar for the following week-long sessions of Johnston County Criminal Superior Court; February 12,1990; March 12, 1990; April 2, 1990; July 9, 1990; July 30, 1990; August 13, 1990; September 4, 1990 and December 10, 1990.

3. Prior to February 12, 1990 session, the defendant filed a motion to continue. The defendant has filed no other motions to continue.

4. The September 4, 1990 session of criminal superior court was a special session scheduled by the Administrative Office of the Courts at the request of the District Attorney. This session began on Tuesday because Monday was Labor Day. On Tuesday, the State called this case for trial and jury selection began. On Wednesday morning, the Court, on its own motion, ordered the case continued, citing the anticipated length of the trial and the scheduling conflicts of the presiding judge, the Honorable I. Beverly Lake, Jr. The jury had not been impaneled. The case was continued over defendant’s objection.

5. The former District Attorney for the Eleventh Prosecutorial District, Mr. John W. Twisdale, whose last term expired December 31, 1990, was called as a witness by the defendant and testified that he had placed this case on the calendar during the February, March, April, July and August sessions of court for the purposes of hearing pre-trial motions and in the hopes that a negotiated plea might be reached. He testified that the State was ready for trial on September 4, 1990. He further testified that after September 4, 1990, he was understaffed and did not have the personnel necessary to try this case.

6. On January 28, 1991, the defendant filed a written demand for a speedy trial. The defendant had made no demand for a speedy trial prior to that date although the defendant had objected to the continuance of this case during the September 4, 1990 session of court.

*847. As a result of the charge pending against her, the defendant’s employment has been disrupted, her financial resources have been drained, her association with people in the community has been curtailed, her liberty has been impaired, and she has suffered anxiety.

8. Despite the delays in the trial of this case, the Court finds that the defendant has not been deprived of any defenses available to her and that all potential witnesses for the defendant are still available.

Based upon the foregoing Findings of Fact, the Court concludes as a matter of law that any prejudice to the defendant caused by the delay in the trial of this case is not so great as to constitute a denial of her constitutional rights to a speedy trial.

It is therefore ordered, ADJUDGED AND DECREED that defendant’s motion is denied.

In State v. Pippin, 72 N.C. App. 387, 324 S.E.2d 900, disc. rev. denied, 313 N.C. 609, 330 S.E.2d 615 (1985), we considered an appeal by the' State from a trial court order dismissing the charges against defendant Pippin for denial of his constitutional right to a speedy trial. In Pippin, we carefully reviewed the law applicable in such cases. We need not repeat that discussion here, but based on the findings in Judge Bowen’s pre-trial order in this case, I find Pippinto be directly on point and conclude that defendant’s motion to dismiss for denial of her right to a speedy trial should have been granted.

First, the length of the delay in this case was significant: 494 days from arrest to trial (457 days in Pippin). It should not be overlooked that from the date of her indictment on 29 January 1990 until 4 September 1990, defendant was subject to being tried capitally.

Second, Judge Bowen’s order clearly reflects either willful or neglectful delay by the State —or both —and arguably oppressive delay. The district attorney testified that he repeatedly calendared defendant’s case for trial in hopes of obtaining a plea, clearly implying that he purposely and repeatedly delayed the trial of defendant’s case. Additionally, it should not be overlooked that on one occasion, defendant was subjected to an aborted trial due to “scheduling conflicts” of the presiding judge.

*85Third, the record reflects that defendant asserted her right to a speedy trial (1) by appearing prepared for trial each time her case was calendared and by being present for one aborted trial, and (2) by a timely motion. At the time defendant made her motion for a speedy trial, she had been under arrest for murder for at least 15 months and under indictment for 13 months. Since her case had been repeatedly calendared by the State and not tried, it cannot be said that defendant’s motion was not timely.

Fourth, Judge Bowen’s order and the record reflect the requisite facts and degree of prejudice resulting from the delays.

For these reasons, the judgment below should be vacated.

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