Conley v. State
| Decision Date | 18 September 1990 |
| Docket Number | No. O-90-0585,O-90-0585 |
| Parties | Dale CONLEY, Petitioner, v. The STATE of Oklahoma, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On May 31, 1990, petitioner filed with this Court a Petition for Temporary Injunction and Temporary Order in which he alleges that he has been denied his constitutional right to a speedy trial in State v. Dale Conley, CRF-86-113, District Court of Osage County. He alleges that the State has failed to prosecute this case for a period of forty-one (41) months, and therefore, the charges against him should be dismissed.
This Court directed a response from the State to this petition on July 23, 1990, which was timely filed. In that response, the State concedes that there was a delay of approximately thirty-two (32) to thirty-four (34) months. However, it asserts that the reason for the delay was negligence and not a deliberate attempt to stall the prosecution of this case. According to the records filed by both parties in this matter, the case has proceeded as follows:
1. July 25, 1986--petitioner appeared before a magistrate on charges of carrying a prohibited firearm, after three prior felony convictions. Bond was set at $5,000.
2. July 28, 1986--petitioner was released on bond.
3. August 27, 1986--preliminary hearing scheduled, but postponed because petitioner checked himself into an alcohol treatment center.
4. September 22, 1986--preliminary hearing scheduled for 10-30-86 5. October 30, 1986--preliminary hearing rescheduled for 1-6-87 because petitioner's attorney was not present.
6. January 6, 1987--preliminary hearing conducted. Petitioner demurred at the close of the state's case. Magistrate calls for briefs from both parties and continues hearing until 2-6-87.
7. January 9, 1987--hearing scheduled for 2-6-87 is continued to 3-12-87.
8. March 12, 1987--upon petitioner's request, hearing scheduled for 3-12-87 is continued to 4-29-87.
9. April 28, 1987--upon petitioner's request, hearing scheduled for 4-29-87 is continued to 7-16-87.
10. July 6, 1987--petitioner's motion to dismiss set for hearing on 7-30-87.
11. July 30, 1987--upon petitioner's request, and over objections by the State, hearing scheduled for 7-30-87 is continued to 8-24-87.
12. August 24, 1987--petitioner's demurrer and motion to suppress are denied.
13. April 10, 1990--State files an application to set case for jury trial.
14. May 21, 1990--petitioner files motion to dismiss for lack of speedy trial.
15. June 18, 1990--petitioner bound over for trial.
16. July 17, 1990--petitioner appears in court for formal arraignment.
This Court has adopted the balancing test enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine if a defendant has been deprived of the right to a speedy trial. Four factors that are consistently part of the balancing test are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id., 407 U.S. at 530, 92 S.Ct. at 2192. These are not absolute factors, but are balanced with other relevant circumstances in making a determination. Rainey v. State, 755 P.2d 89 (Okl.Cr.1988).
First, we consider the length of delay, which, at this point, has been almost three years. The length of this delay is substantial so as to require inquiry into the other factors as set out in Barker. Henderson v. State, 743 P.2d 1092 (Okl.Cr.1987). Second, the reason offered by the State must be lawful and in good faith. State ex. rel. Trusty v. Graham, 525 P.2d 1231 (Okl.Cr.1974). The State submits that the delay of thirty-two months was the result of mistake or neglect, which the Supreme Court in Barker characterized as a neutral reason. However, it does not justify the delay "since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
The third factor to consider is whether the defendant asserted his right to a speedy trial during the length of the delay. From the beginning, petitioner has been free on bond. Petitioner claims that he sent a letter to the Osage County District Attorney on February 2, 1988, asserting his right to a speedy trial. The State claims that petitioner did not assert his right...
To continue reading
Request your trial
-
Ellis v. State
...delay between refilling of information and trial was sufficient to delay to necessitate review of other factors); Conley v. State, 1990 OK CR 66, 798 P.2d 1088, 1089 (nearly three year delay was substantial enough to require inquiry into the other factors as set out in Barker); McDuffie v. ......
-
Davis v. State
...S.Ct. 126, 78 L.Ed.2d 123 (1985). We find in proposition six that Davis was not denied his right to a speedy trial. Conley v. State, 1990 OK CR 66, 798 P.2d 1088, 1089. ¶ 16 The Judgments and Sentences of the trial court are AFFIRMED. JOHNSON, J., Concurs. LUMPKIN, V.P.J., Specially Concurs......