Darby v. State, No. 55712

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE; PATTERSON
Citation476 So.2d 1192
PartiesGeorge Dexter DARBY v. STATE of Mississippi.
Decision Date25 September 1985
Docket NumberNo. 55712

Page 1192

476 So.2d 1192
George Dexter DARBY
v.
STATE of Mississippi.
No. 55712.
Supreme Court of Mississippi.
Sept. 25, 1985.

Carl D. Ford, Laurel, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Page 1193

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Jones County, wherein George Dexter Darby seeks to have his conviction overturned on the basis of Sec. 99-17-1, Miss.Code Ann. (Supp.1984). Mr. Darby was indicted on July 14, 1981, on charges of burglary and being a habitual criminal, and he was arraigned on July 29, 1981. On November 25, 1981, Darby pled guilty to the charge of receiving and possessing stolen property. He was sentenced to five years. On December 16, 1983, the Circuit Court of Jones County sustained his petition for writ of error coram nobis, on the basis of his allegations that he pled guilty to a charge which was not included in the indictment. Darby was retried on March 2, 1984, on the original indictment charging burglary. He was found guilty, and sentenced to ten years. It is from this conviction that Darby appeals, assigning as error that:

1. The trial court erred in not dismissing the charges against the appellant in violation of Sec. 99-17-1 Miss.Code Ann. (1972 as amended) and the Sixth Amendment of the United States Constitution.

2. The imposition of a more severe sentence upon retrial violated the due process clause of the United States Constitution.

Darby makes no appeal based on the merits of his case; therefore, the details of the burglary for which he was charged need not be discussed here. The relevant facts for this appeal are summarized in the table below:

EVENT DATE
                ---------------------------------- --------
                Indictment on charges of burglary
                and being a habitual criminal 7-14-81
                Arraignment; not guilty plea 7-29-81
                Motion for continuance to
                November term 7-29-81
                Continuance granted 7-29-81
                Guilty plea to receiving and
                possessing stolen property 11-25-81
                Sentenced to five years 11-25-81
                Petition for writ of error coram
                nobis to Circuit Court 10-11-83
                Order overruling petition 11-08-83
                Supplemental petition for writ of
                error coram nobis to Circuit Court 12-2-83
                Order sustaining supplemental
                petition and vacating guilty plea 12-16-83
                Trial 3-2-84
                Sentenced to ten years 3-2-84
                

Based on the facts as shown in the table above, the total time for arraignment on July 29, 1981, to trial on March 2, 1984 was 946 days. The time from arraignment to his original entering of a guilty plea was approximately 119 days. Of that time, 112 days could be charged to the defendant's motion for a continuance, as the original trial date was August 6, 1981. The elapsed time from the order sustaining the petition for error coram nobis until the trial on March 2, 1984, was 76 days.

Darby's first assignment of error asserts that his conviction must be reversed because it is in violation of Sec. 99-17-1. The section reads:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

By this statute, the Mississippi...

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5 practice notes
  • Beckwith v. State, No. 91-IA-1207
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1992
    ...v. State, 481 So.2d 763 (Miss.1985); In re W.R.A, 481 So.2d 280 (Miss.1985); Nations v. State, 481 So.2d 760 (Miss.1985); Darby v. State, 476 So.2d 1192 (Miss.1985); Burgess v. State, 473 So.2d 432 (Miss.1985); Plummer v. State, 472 So.2d 358 (Miss.1985); Bailey v. State, 463 So.2d 1059 (Mi......
  • Livingston v. State, No. 57198
    • United States
    • United States State Supreme Court of Mississippi
    • April 27, 1988
    ...rights normally attach at arraignment and indictment, respectively. See Hughey v. State, 512 So.2d 4, 7 (Miss.1987); Darby v. State, 476 So.2d 1192, 1194 (Miss.1985). Livingston's indictment in this case occurred September 5, 1985. The record does not reflect when or if Livingston was arrai......
  • Kinzey v. State, No. 56273
    • United States
    • United States State Supreme Court of Mississippi
    • November 19, 1986
    ...must be applied on a case by case basis under the particular facts of the case under consideration. Id. at 1314. See also Darby v. State, 476 So.2d 1192, 1194 (Miss.1985). No one of these Barker factors is dispositive; all must be considered together. Burgess v. State, 473 So.3d 432 (Miss.1......
  • State v. Ferguson, No. 07-KA-59394
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1991
    ...began to run on the date we reversed his original conviction. Mitchell v. State, 572 So.2d 865 (Miss.1990); see also, Darby v. State, 476 So.2d 1192, 1194 Once our beginning and ending dates be established, this Barker factor becomes a function of mathematics and the calendar. The delay at ......
  • Request a trial to view additional results
5 cases
  • Beckwith v. State, No. 91-IA-1207
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1992
    ...v. State, 481 So.2d 763 (Miss.1985); In re W.R.A, 481 So.2d 280 (Miss.1985); Nations v. State, 481 So.2d 760 (Miss.1985); Darby v. State, 476 So.2d 1192 (Miss.1985); Burgess v. State, 473 So.2d 432 (Miss.1985); Plummer v. State, 472 So.2d 358 (Miss.1985); Bailey v. State, 463 So.2d 1059 (Mi......
  • Livingston v. State, No. 57198
    • United States
    • United States State Supreme Court of Mississippi
    • April 27, 1988
    ...rights normally attach at arraignment and indictment, respectively. See Hughey v. State, 512 So.2d 4, 7 (Miss.1987); Darby v. State, 476 So.2d 1192, 1194 (Miss.1985). Livingston's indictment in this case occurred September 5, 1985. The record does not reflect when or if Livingston was arrai......
  • Kinzey v. State, No. 56273
    • United States
    • United States State Supreme Court of Mississippi
    • November 19, 1986
    ...must be applied on a case by case basis under the particular facts of the case under consideration. Id. at 1314. See also Darby v. State, 476 So.2d 1192, 1194 (Miss.1985). No one of these Barker factors is dispositive; all must be considered together. Burgess v. State, 473 So.3d 432 (Miss.1......
  • State v. Ferguson, No. 07-KA-59394
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1991
    ...began to run on the date we reversed his original conviction. Mitchell v. State, 572 So.2d 865 (Miss.1990); see also, Darby v. State, 476 So.2d 1192, 1194 Once our beginning and ending dates be established, this Barker factor becomes a function of mathematics and the calendar. The delay at ......
  • Request a trial to view additional results

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