Billingsley v. State
| Decision Date | 19 December 1978 |
| Docket Number | 6 Div. 331 |
| Citation | 367 So.2d 553 |
| Parties | Allan Johnson BILLINGSLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Quentin Q. Brown, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
The only issue appellant presents for review may be condensed to whether he was denied his right to a speedy trial guaranteed by the interfusion of the Sixth and Fourteenth Amendments to the Constitution of the United States 1 and safeguarded also by Art. I, Sec. 6, of the Constitution of Alabama of 1901.
There is agreement on the part of all concerned that the crime for which appellant was indicted, tried and convicted, a robbery, occurred in Birmingham, Jefferson County, on May 14 or 15, 1975. He was indicted on February 6, 1976, tried July 28-29 of the same year and convicted and sentenced to imprisonment for ten years.
On the ground of indigency, appellant was represented by appointed counsel at his arraignment and on the trial. His counsel appointed for and representing him on appeal is different from the counsel representing him at arraignment and on the trial. Our study of the record convinces us that both counsel have represented him well and have done their best for him.
Upon arraignment on May 14, 1976, accompanied by his appointed counsel, defendant pleaded not guilty, and his case was set for trial on June 28, 1976, with the privilege afforded him of interposing "any special pleas which defendant had the right as a matter of law to interpose prior to his plea of not guilty." The case was set for trial June 28, 1976, but, according to defendant, "due to unfortunate circumstances Defense had to request a continuance for one month." It was set again for trial on July 26, 1976, and reached on the docket for trial on July 28, 1976.
In furtherance of appellant's contention, he relies chiefly upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and Prince v. State, Ala.Cr.App., 354 So.2d 1186 (1978), which cases make clear the course we should follow.
An issue as to the asserted denial of defendant's right to a speedy trial was presented to the trial court by defendant's motion as follows:
The hearing on the motion was conducted on July 28, 1976, before the trial of defendant was commenced. Neither party seems to make any point as to the occasion for the intervention of approximately six months between the presentation 2 of the motion and the hearing thereon. On the hearing of the motion neither party attempted to extend the hearing beyond the allegations contained in the motion. Neither party made any contention as to the time intervening between the date of the indictment and the date of defendant's trial. Defendant did not contend, and appellant does not now contend, that the alleged denial of his right to a speedy trial was caused by any action or inaction of the state other than during approximately one hundred eighty days after June 12, 1975, the date defendant alleges that he requested in writing that he be given a speedy trial.
In Prince v. State, Supra, Judge Tyson helpfully and accurately summarizes the factors set forth in Barker v. Wingo, Supra, that are to be considered in determining whether there has been a violation of one's right to a speedy trial, by stating:
According to Barker v. Wingo, Supra, at 407 U.S. 533, 92 S.Ct. at 2193, no single factor is "either a necessary or sufficient condition" to a determination that one has been denied the right of speedy trial, but they are all "related factors and must be considered together with such other circumstances as may be relevant." In Barker v. Wingo, Supra, and Prince v. State, it was held that there had been a denial of a speedy trial. In each case, however, the issue between the parties was as to the entire time between the initiation of the criminal prosecution and the trial. The instant case is different in that material respect. The parties herein focused their attention and consideration upon the period of approximately one hundred and eighty days after defendant claimed he had requested in writing a speedy trial, which in turn was less than thirty days from the date of the alleged crime.
At the hearing on the motion, the only witnesses were defendant and Miss Marty Davis, the office supervisor in the office of the District Attorney of the Circuit Court of Jefferson County. Appellant-defendant testified that on June 12, 1975, he mailed to the District Attorney of the Jefferson County Circuit Court, a letter of which the following is a copy:
Defendant testified that on or about November 20, 1975, he wrote and mailed another letter to the District Attorney, referring to the previous letter, in which subsequent letter he requested that the detainer be dropped.
Miss Davis testified that continuously from the time of the alleged crime until the time of her testimony, she had charge of all the clerical work in the office; a letter such as the letter of June 12, 1975, if received by the office would come to her attention, and she would give it further handling until it received the attention of the District Attorney. A pertinent part of her testimony is as follows:
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...on two other occasions he repeatedly requested the state authorities to give him a speedy trial. As in the case of Billingsley v. State, 367 So.2d 553, 556 (Ala.Cr.App.1978), cert. denied, 367 So.2d 557 (Ala.1979), which has a similar factual situation, "(t)here is implicit in the trial cou......
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...item was not received. This evidence does not conclusively rebut the presumption, but creates a question of fact. Billingsley v. State, 367 So.2d 553 (Ala.Crim.App.1978)(applying rule to mailing of demand for speedy The first step in the analysis is to determine whether the plaintiff has pr......