Durham v. State
| Decision Date | 28 November 1979 |
| Docket Number | No. 51516,51516 |
| Citation | 377 So.2d 909 |
| Parties | Thomas W. DURHAM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Moore & Selph, Deborah Selph, Jackson, for appellant.
A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, SUGG and COFER, JJ.
SUGG, Justice, for the Court:
Defendant was indicted for burglary during the April, 1977 term of Circuit Court of Leake County, arraigned April 28, tried and convicted on November 22, 1978, and sentenced to imprisonment for six years.
Defendant assigns as error the action of the trial court in overruling his motion for dismissal. The motion to dismiss was based on section 99-17-1 Mississippi Code Annotated (Supp.1978) which requires trial of a defendant no later than 270 days after arraignment unless good cause be shown for failure to try within the time prescribed by statute. We held in Payne v. State, 363 So.2d 278 (Miss.1978) that our speedy trial statute is plain and unambiguous and requires that a defendant be tried no later than 270 days after his arraignment unless good cause be shown for trial after 270 days. The state bears the burden of bringing a defendant charged with crime to trial within the time prescribed by statute, or show good reason for failure to comply with the statute.
In this case, defendant was tried more than 270 days after his arraignment, thus presenting the question of whether good cause was shown for the delay in bringing defendant to trial.
At the April, 1977 term the attorney representing defendant did not appear because of the death of a relative in a distant state. The attorney's secretary appeared and announced to the court that the attorney would be back during the term of court. No motion for continuance was made but the defendant was not tried at the April, 1977 term.
The next term of court opened on November 14, 1977. The defendant did not appear and a motion for judgment Nisi was sustained on opening day. On November 15 an attorney was appointed by the court to represent defendant who immediately made a motion for a continuance. Another motion for continuance was filed on November 22 by defendant's attorney on the ground that he had not had sufficient time to prepare for trial. No order was entered on the motion so the case stood continued for the term.
The next term for the trial of criminal cases convened on April 24, 1978, and was continued because of the absence of Jerry Jones, a material witness for the state. This continuance was sought because the city marshal, Billy Wayne Gilbert, died in March, 1978, as the result of injuries sustained in an automobile accident. After Gilbert's death, Jones was the only remaining witness to certain material facts necessary to be proven. The Supreme Court of the United States observed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) that absence of a material witness for the state is a valid reason justifying appropriate delay in the trial of a defendant.
Although defendant was tried 584 days after his arraignment, he was tried within the time fixed by section 99-17-1 because good reason was shown for the delay. Section 9-7-27 Mississippi Code Annotated (Supp.1978) provides for three terms of court in Leake County to be held on the second Monday in January, fourth Monday in April, and the second Monday in November in each year. The January term is for trial of civil cases exclusively. Only four terms of court were involved in this case. At the first term, April, 1977, defendant's counsel was not present; at the second term, November, 1977, defendant requested a continuance for his attorney to prepare for trial. At the third term, April, 1978, ...
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