Diddlemeyer v. State, No. 52594

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtLEE; PATTERSON; HAWKINS; HAWKINS
Citation398 So.2d 1343
PartiesHarold D. DIDDLEMEYER v. STATE of Mississippi.
Decision Date03 June 1981
Docket NumberNo. 52594

Page 1343

398 So.2d 1343
Harold D. DIDDLEMEYER
v.
STATE of Mississippi.
No. 52594.
Supreme Court of Mississippi.
June 3, 1981.

Page 1344

Robert M. Acevedo, Biloxi, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Jr. Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and SUGG and LEE, JJ.

LEE, Justice, for the Court:

Harold D. Diddlemeyer was indicted, tried and convicted in the Circuit Court of Harrison County, Honorable Ruble Griffin, presiding, on a charge of burglary as an habitual offender. He was found guilty by the jury and was sentenced to life imprisonment without parole or probation. He has appealed and assigns seven (7) errors in the trial below.

On March 8, 1979, appellant activated a silent alarm at Nacol's Jewelry Store in North Biloxi, while entering the building by prying open a section of the metal wall at the rear of the building and cutting through the interior wall. Officers of the Harrison County Sheriff's Department and the Biloxi Police Department converged on the scene and discovered appellant inside the building. He was ordered to come out at the point of entry and was arrested. The manager of the store had been notified and he arrived shortly thereafter. The appellant's person was searched, and a number of jewelry items were found in his pockets. They were identified by the manager as merchandise from the store.

I.

Was the appellant deprived of a speedy trial?

After his arrest on March 8, 1979, appellant was returned to the Mississippi State Penitentiary because of parole violation. The February Grand Jury had adjourned at the time and appellant was indicted in August, 1979. Due to a crowded court docket, appellant was not called for arraignment until February 15, 1980, at which time it was found that he had not been served with a copy of the indictment. Thereupon, he was presented with the indictment, and one week later, on February 22, 1980, he was arraigned in Cause # 2028. 1 The case was tried seventeen (17) days afterward on March 10, 1980.

Appellant argues the 270-day period under Mississippi Code Annotated Section 99-17-1 (Supp.1980) runs from the date of the offense. His trial from date of arraignment was well within the 270-day period. We now consider whether or not appellant was prejudiced by the lapse of time from the date the crime was committed until trial. The question is governed by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Carlisle v. State, 393 So.2d 1312 (Miss.1981). In Carlisle, we said:

"In Barker the United States Supreme Court announced a four part balancing test involving the following four factors:

1. Length of delay,

2. Reason for delay,

3. The defendant's assertion of his right,

4. Prejudice to the defendant.

The Supreme Court, in Barker, promulgated the balancing test because, 'The right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied.' The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration." 393 So.2d at 1314.

The delay in the trial resulted from the fact that the grand jury was not in session when the crime was committed and because

Page 1345

of a crowded docket. It was not an unreasonable delay in trial, appellant has not shown prejudice, and we find no merit in this contention.

II.

Did the indictment fail to properly charge appellant under Indictment # 2028?

Appellant contends that the indictment in Cause # 2028 did not properly charge a violation of the habitual criminal statute. Mississippi Code Annotated Section 99-19-83 (1972) provides the following:

"Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible...

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18 practice notes
  • Beckwith v. State, No. 91-IA-1207
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1992
    ...382 So.2d 1095 (Miss.1980); Turner v. State, 383 So.2d 489 (Miss.1980); Davis v. State, 406 So.2d 795 (Miss.1981); Diddlemeyer v. State, 398 So.2d 1343 (Miss.1981); Jones v. State, 398 So.2d 1312 (Miss.1981); Smith v. State, 394 So.2d 1340 (Miss.1981); Saxton v. State, 394 So.2d 871 (Miss.1......
  • Thorson v. State, No. 90-DP-00015
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1994
    ...justification for the time which transpired before trial in this case. Bailey v. State, 463 So.2d 1059 (Miss.1985); Diddlemeyer v. State, 398 So.2d 1343 C. Defendant's Assertion of His Right to a Speedy Trial The defendant asserted his right to a speedy trial at his initial appearance on Ma......
  • Alexander v. State, 2019-CT-01612-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 10, 2022
    ...jury trial on the issue of habitual-offender status. Adams v. State , 410 So. 2d 1332, 1334 (Miss. 1982) (citing Diddlemeyer v. State , 398 So. 2d 1343 (Miss. 1981) ; Yates v. State , 396 So. 2d 629 (Miss. 1981) ; Wilson v. State , 395 So. 2d 957 (Miss. 1981) ). Further, Apprendi expressly ......
  • Giles v. State, No. 92-DP-00428
    • United States
    • Mississippi Supreme Court
    • February 2, 1995
    ...v. State, 498 So.2d 814, 817 (Miss.1986) (congested docket was sufficient to establish good cause for delay); Diddlemeyer v. State, 398 So.2d 1343, 1345 (overcrowded docket constituted good cause for It is noted that the cases in which this Court has reversed judgments based on the speedy t......
  • Request a trial to view additional results
18 cases
  • Beckwith v. State, No. 91-IA-1207
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1992
    ...382 So.2d 1095 (Miss.1980); Turner v. State, 383 So.2d 489 (Miss.1980); Davis v. State, 406 So.2d 795 (Miss.1981); Diddlemeyer v. State, 398 So.2d 1343 (Miss.1981); Jones v. State, 398 So.2d 1312 (Miss.1981); Smith v. State, 394 So.2d 1340 (Miss.1981); Saxton v. State, 394 So.2d 871 (Miss.1......
  • Thorson v. State, No. 90-DP-00015
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1994
    ...justification for the time which transpired before trial in this case. Bailey v. State, 463 So.2d 1059 (Miss.1985); Diddlemeyer v. State, 398 So.2d 1343 C. Defendant's Assertion of His Right to a Speedy Trial The defendant asserted his right to a speedy trial at his initial appearance on Ma......
  • Alexander v. State, 2019-CT-01612-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 10, 2022
    ...jury trial on the issue of habitual-offender status. Adams v. State , 410 So. 2d 1332, 1334 (Miss. 1982) (citing Diddlemeyer v. State , 398 So. 2d 1343 (Miss. 1981) ; Yates v. State , 396 So. 2d 629 (Miss. 1981) ; Wilson v. State , 395 So. 2d 957 (Miss. 1981) ). Further, Apprendi expressly ......
  • Giles v. State, No. 92-DP-00428
    • United States
    • Mississippi Supreme Court
    • February 2, 1995
    ...v. State, 498 So.2d 814, 817 (Miss.1986) (congested docket was sufficient to establish good cause for delay); Diddlemeyer v. State, 398 So.2d 1343, 1345 (overcrowded docket constituted good cause for It is noted that the cases in which this Court has reversed judgments based on the speedy t......
  • Request a trial to view additional results

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