State v. Bobo

724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434
CourtCourt of Criminal Appeals of Tennessee
DecidedJuly 9, 1981
StatusPublished
Cited by12 cases

This text of 724 S.W.2d 760 (State v. Bobo) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bobo, 724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434 (Tenn. Ct. App. 1981).

Opinion

OPINION

DUNCAN, Judge.

The defendant, Charles E. Bobo, Jr., was convicted in the Washington County Criminal Court of armed robbery and received a penitentiary sentence of twenty (20) years, the sentence to be served consecutive to a prior North Carolina sentence.

The defendant contends that he was tried in violation of the provisions of the Interstate Compact on Detainers, complains about evidence of another crime that was introduced in his trial, raises an attorney-client privilege question, and says the trial court erred in imposing a consecutive sentence upon him. We find merit to two (2) of the issues raised which necessitates a reversal of the defendant’s conviction and a remand for a new trial.

In his first issue, the defendant contends that his indictment should have been dismissed due to a violation of the Interstate Compact on Detainers.

The defendant was indicted on November 29,1977, at which time he was incarcerated in the North Carolina penitentiary. Ultimately the defendant was returned to Tennessee pursuant to the provisions of the Compact for trial on this indictment, as well as for trial on a murder indictment. Article IV(c) of the Compact, codified in T.C.A. § 40-3901, provides that trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in this state, but for good cause the court having jurisdiction may grant necessary or reasonable continuances.

The record shows that the defendant was tried on October 11-12, 1978, which was within one hundred twenty (120) days from his return to Tennessee, but that trial resulted in a mistrial. The present trial was held on May 28-29, 1980. The defendant insists that the provisions of the Compact should be interpreted as requiring that his second trial should have been held within one hundred twenty (120) days from the date of his mistrial.1

[762]*762This issue is one of first impression in Tennessee. We have not been cited to, nor has our own research disclosed, cases arising under the Compact which deal with the precise issue at bar. In State v. George, 271 N.C. 438, 156 S.E.2d 845 (1967), overruled on other grounds in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), the North Carolina Supreme Court was faced with the issue of the effect of a mistrial on the time constraints under the Compact. Although George differs from the present case on its facts,2 the following language from 22A C.J.S. Criminal Law § 472(3), which the George court quoted with approval, is instructive in the present case:

(W)hile accused is entitled to a speedy retrial by virtue of the constitutional or statutory guaranty of a speedy trial, the statute providing for a discharge or dismissal if accused is not tried within a stated time does not govern the time within which a retrial must be had, and the time for retrial is a matter of judicial discretion. 156 S.E.2d at 848.

Other states have addressed the issue of timely retrial in the context of their respective state’s speedy trial statutes. While these decisions are not based on the Interstate Compact on Detainers, the considerations are similar, and we find the cases enlightening on the issue presented to us.3

In State v. Wright, 234 N.W.2d 99 (Iowa 1975), the Iowa Supreme Court said:

We are impressed by the reasoning of the Nebraska Supreme Court in State v. Fromkin, 174 Neb. 849, 858, 120 N.W.2d 25, 30. That court held the statute governing the time for initial trial is inapplicable to retrial; the time for retrial is a reasonable time, within the trial court’s discretion; but since the legislature had indicated its conception of a reasonable time for the first trial, the court would adopt that same time period as a reasonable time for retrial. The court stated:
We hold, therefore, that the statute, as such, does not apply a second time; and that it has run its course with compliance to the first trial. But, we hold that independent of the statute, the retrial, or retrials, must be held within a reasonable time within the sound discretion of the court. We further hold that since we have held that the statutory provision was a reasonable one as to the outside limits of time permitted for a first trial, that the time limit for a retrial, or retrials, should be fixed as not extending beyond what we have held to be reasonable for the first trial. It, therefore, appears that the rule is, after the statutory requirements are satisfied as to the first trial, the time for retrial is not a matter of absolute right, but is left to the sound discretion of the court; provided, that it may not extend beyond the statutory limit provided for the first trial.
We thus hold as a rule of this court that criminal cases must be retried within 60 days after mistrial, if the case is to be retried. 234 N.W. at 103.

Since our legislature has made no provisions for a retrial under the circumstances presented in this case, we hold that the time for retrial after a mistrial is to be left to the sound discretion of the trial court.

Obviously, the court should see that a retrial takes place within a reasonable time, and what is reasonable will depend upon the facts and circumstances present in each particular case. Since the reasons prompting the legislature to select the one hundred twenty (120) day time requirement under Article IV of the Compact continue to be valid beyond the date of mistrial, the defendant must be retried within a reasonable time from the date of mistrial, such [763]*763period not to exceed one hundred twenty (120) days, unless good cause be shown.

In the present case, the time lapse between the defendant’s mistrial and the retrial was approximately nineteen (19) months.4 The defendant says that he never moved for a continuance of this case. The record supports this assertion because we find no motions for continuance filed by either the defendant or the State. We find this record to be lacking in certain formalities incident to the continuance of a case under the Compact. We find, however, that the absence of these things is harmless because this record affirmatively shows many justifiable reasons why this case could not have been expeditiously retried, and we point out that much of the delay in the retrial of this case was brought about by the actions of the defendant.

After the mistrial occurred, the defendant’s original retained counsel withdrew from the case. The defendant was found to be indigent and two (2) new attorneys were appointed to represent him. Later, due to the defendant’s dissatisfaction with these attorneys, they were relieved as his counsel and another attorney was appointed to represent him. Subsequently, the defendant requested and was allowed to represent himself, with his appointed counsel serving as an advisor.

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Cite This Page — Counsel Stack

Bluebook (online)
724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bobo-tenncrimapp-1981.