State v. Clark

501 P.2d 274, 28 Utah 2d 272, 1972 Utah LEXIS 849

• Court: Utah Supreme Court
• Decided: September 20, 1972
• Docket: 12877
• Status: Published

Opinions

ELLETT, Justice:

The State appeals from an order made by the trial court dismissing an information wherein the respondent was charged with the crime of burglary in the second degree. There has been no trial of the matter, and the State is therefore entitled to appeal. Section 77-3ÍM-, U.C.A.1953. 'The dismissal was made pursuant to Sections 77-65-1 and 77-65-2, U.C.A.1953 as amended by Laws of Utah 1965, Chapter 157. Those sections, so far as material, read:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within ninety days after he shall have caused to be delivered to the county attorney of the county in which the indictment, information or complaint is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided, that for a good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

A complaint was signed and the respondent arrested on November 11, 1971. At that time he was on parole from the state prison. He was returned to prison, and on November 15, 1971, he requested final disposition of the matter contained in the complaint.

A preliminary hearing was held February 1, 1972, and he was bound over to the district court. Nine days later the district attorney , filed an information charging the respondent with the crime of burglary in the second degree. Four days thereafter the .respondent was arraigned, and trial was set for February 25, 1972.

On February 24, 1972, the respondent moved for dismissal on the ground that more than ninety days had elapsed since he demanded trial. The judge granted the motion.

The question involved herein was decided in the case of State v. Belche, 25 Utah 2d 37, 475 P.2d 60 (1970). The defendant could not be tried on the complaint, the function of which was merely to detain him until a determination could he made at a preliminary hearing whether to hold him for trial or to release him.

The case of State v. Wilson, 22 Utah 2d 361, 453 P.2d 158 (1969), seems to be in conflict with the holding announced in State v. Belcher, supra. Plowever, in the Wilson case the point involved herein was not raised. The State there contended that the defendant at arraignment by not demanding a trial date within the ninety-day provision of the statute waived the limitation. Our decision in that case was to the effect that there was no waiver on the part of the defendant by not calling the attention of the court to the lateness of the trial date.

If a defendant is not proceeded against with dispatch, he has available tO' him the constitutional defense of lack of a speedy trial. The statute does not supplant that defense. It applies only to prisoners incarcerated in penal institutions. It specifically limits the request to a situation where there is a pending untried information, indictment or complaint. The only time when there can be an untried complaint is when the charge is a misdemeanor. In the instant case the trial was set fifteen days after the information was filed.

The question of the validity of a notice filed in felony cases before the filing of an information or indictment has been decided by the Supreme Court of Florida. Rule 1.191(a)(2) of the Florida Rules of Criminal Procedure, 33 F.S.A.¹ so far as material reads:

[Ejvery person charged with a crime, by indictment or information or trial affidavit, shall upon_ demand filed with the court . . . be brought to trial within 60 days, . . . and if not brought to trial within such ■ period of time following such demand shall upon motion timely filed with the court . .. be forever discharged from the crime;

In the case of State ex rel. Dennis v. Morphonios, 252 So.2d 845 (Fla.App.1971), the relator was arrested and charged with breaking and entering a dwelling on June 6, 1971. On June 7, 1971, he filed a demand for speedy trial. There was no allegation that an information or indictment had been filed against him. The information was filed July 21, 1971, charging the relator with the, crime for which he was being held. On August 31, 1971, he filed a motion to dismiss. The motion was denied, and relator sought a writ of prohibition against the judge to prevent trial after.the lapse of 60 daj's from notice. The Florida District Court of Appeal denied the writ on the ground that notice filed before information is a nullity.

Also, in State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), the court said:

Petitioners were taken into custody February 5, 1971, and have remained in custody charged with the crime of rape, a capital offense. A written demand for speedy trial was filed May 25, 1971, and an indictment was returned June 1, 1971. This written demand was a nullity. .. .

We think the State has ninety days from notice after an information or indictment has been filed in which to bring the defendant to trial in a felony case.

The order is reversed and the case remanded for trial.

CALLISTER, C. J., concurs.

1 . 245 So.2d 33.