State v. Wavrick

844 P.2d 712, 123 Idaho 83, 1992 Ida. App. LEXIS 280
CourtIdaho Court of Appeals
DecidedDecember 28, 1992
Docket19447
StatusPublished
Cited by10 cases

This text of 844 P.2d 712 (State v. Wavrick) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wavrick, 844 P.2d 712, 123 Idaho 83, 1992 Ida. App. LEXIS 280 (Idaho Ct. App. 1992).

Opinion

SILAK, Judge.

Johnny E. Wavrick filed a motion to dismiss a charge of lewd and lascivious conduct with a minor in case No. 10523, and a separate motion to dismiss a charge that he violated the terms of his probation in case No. 8788. Both motions were based on Wavrick’s assertion that he had been deprived of his right to a speedy disposition of the charges. The district court denied the motions and Wavrick was subsequently found guilty of lewd conduct with a minor in case No. 10523, and, based on the same conduct, in violation of the terms of his probation in case No. 8788. For his conviction of lewd conduct with a minor in case No. 10523, Wavrick received a sentence of fifteen years to life in prison. As a result of his probation violation in case No. 8788, Wavrick’s probation was revoked and the court imposed an indeterminate sentence of twenty years for the underlying conviction in that case, which was also for lewd conduct with a minor. The court ordered that the sentences in the two cases run concurrently. Wavrick appeals the court’s denial of his motions to dismiss, as well as the sentences imposed. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 1982 Wavrick pled guilty in case No. 8788 to one count of lewd and lascivious conduct with a minor, I.C. § 18-6607 (re-designated and amended in 1984 as I.C. § 18-1508), a felony. In exchange for his plea, the state agreed to dismiss two other counts of the same crime. On December 9, 1982, Wavrick was granted a withheld judgment and was placed on probation for a period of seven years.

On November 6, 1989, while he was still on probation in case No. 8788, a criminal complaint in case No. 10523 was filed, charging Wavrick with one count of lewd conduct with a minor, I.C. § 18-1508, a felony. As a result, Wavrick was also charged with violating the terms of his probation in case No. 8788. At his arraignment Wavrick entered a plea of not guilty to both the lewd conduct charge and the probation violation. Also at arraignment, Wavrick requested that the hearing on the probation violation charge not be held until after his trial on the lewd conduct charge. The district court subsequently scheduled a trial on the lewd conduct charge for March 12, 1990.

On the application of the defendant, on March 8, 1990, the state and Wavrick stipulated to postpone the March 12 trial date. Wavrick requested this postponement because his counsel had a conflicting trial scheduled. Eight days later, on March 16, Wavrick filed a “Waiver of Speedy Trial” with the court, which stated, in essence, that Wavrick’s postponement of the original trial date was only a limited waiver of his statutory speedy trial right; that he was continuing to assert his speedy trial right under I.C. § 19-3501, but would extend the time for trial to July 1, about two weeks beyond the six-month deadline established by § 19-3501.

*86 After the March 12 trial date was postponed, a new trial date was not set for a number of months. The record indicates that when the initial trial date was postponed, both parties anticipated that the trial would be rescheduled by July 1. For some unexplained reason the trial judge did not reschedule the trial, even though a letter was sent by the prosecutor requesting that the matter be rescheduled. In the meantime the parties continued to engage in unsuccessful negotiations in an attempt to reach a plea agreement. On September 7, the trial court held a pretrial conference. Following the pretrial conference both parties believed the trial court was going to schedule an evidentiary hearing on the probation violation charge for sometime in September. When the parties did not receive any notice of hearing the prosecutor sent another letter to prompt the court to set the matter for hearing. The probation violation hearing was scheduled for November 19. On or about November 18, the trial court postponed the probation violation hearing on its own motion, citing scheduling conflicts. Again the matter was not rescheduled, and on December 7, the prosecutor sent another letter to the court requesting that the matter be set for trial. A similar letter was sent by the prosecutor on January 3, 1991. About this time, the original trial judge retired from office and Wavrick’s case was reassigned to another judge. On January 7, the parties received an order from the new judge scheduling a hearing for February 12, 1991.

On January 30, Wavrick filed two motions to dismiss. He moved to dismiss the lewd conduct charge in case No. 10523 alleging that he had been deprived of his right to a speedy trial. Wavrick also moved to dismiss the probation violation charge in case No. 8788 alleging he had been deprived of his right to a speedy hearing. After hearing argument on February 12, the district court denied both motions and scheduled a jury trial in case No. 10523.

Wavrick’s jury trial commenced on March 19. On March 22, the jury returned a verdict of guilty against Wavrick on the charge of lewd conduct with a minor. By stipulation of the parties, the district court considered the evidence presented at trial in case No. 10523 to determine whether Wavrick had violated the terms of his probation in case No. 8788. On May 23, the district court conducted a sentencing hearing, at which time Wavrick received a sentence of fifteen years to life for his conviction in case No. 10523. At the sentencing hearing the court also revoked Wavrick’s probation and entered a judgment of conviction in case No. 8788. For his conviction in case No. 8788 Wavrick received an indeterminate twenty-year sentence to run concurrently with his sentence in case No. 10523. Wavrick then brought this appeal.

ISSUES ON APPEAL

Wavrick raises the following issues: (1) whether the district court erred in denying Wavrick’s motion to dismiss for lack of speedy trial in case No. 10523; (2) whether the court erred in denying Wavrick’s motion to dismiss for lack of a speedy hearing on the probation violation charge in case No. 8788; and (3) whether the court abused its discretion in imposing a fifteen year to life sentence for Wavrick’s conviction in case No. 10523, and an indeterminate sentence of twenty years for Wavrick’s conviction in case No. 8788. We will discuss each of these issues in turn.

ANALYSIS

1. Right to Speedy Trial in Case No. 10523. Whether Wavrick was denied his right to speedy trial is a mixed question of law and fact. On appeal, when faced with mixed questions of law and fact, we defer to facts found upon substantial evidence, but we freely review the application of law to those facts. Young v. State, 115 Idaho 52, 54, 764 P.2d 129, 131 (Ct.App. 1988); see also State v. Rusho, 110 Idaho 556, 559, 716 P.2d 1328, 1331 (Ct.App.1986) (factual findings are reviewed for clear error, but whether the facts found demonstrate compliance with constitutional requirements is reviewed freely).

*87 Wavrick claims that he was deprived of his right to speedy trial as guaranteed by Idaho statutes and the state and federal constitutions. The right to speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, section 13 of the Idaho Constitution.

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Bluebook (online)
844 P.2d 712, 123 Idaho 83, 1992 Ida. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wavrick-idahoctapp-1992.