Howell v. State

• Decision Date: 31 August 1982
• Docket Number: No. AD-343,AD-343
• Parties: James Randolph HOWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1164

418 So.2d 1164

James Randolph HOWELL, Appellant, v. STATE of Florida, Appellee.

No. AD-343.

District Court of Appeal of Florida First District.

Aug. 31, 1982.

Rehearing Denied Oct. 1, 1982.

Michael E. Allen, Public Defender and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Howell appeals his adjudication of guilt for the offense of selling, delivering or possessing cannabis with the intent to sell, entered following his plea of nolo contendere. The plea in turn was conditioned upon his right to appeal the denial of his motion to dismiss the information, which had alleged that his constitutional right to speedy trial had been violated due to the delay between the asserted date of the offense and his arrest. We affirm.

In this case, we identify and distinguish principles applicable to the determination of constitutional deprivations under the United States Constitution's Sixth Amendment Speedy Trial Clause and the Fourteenth Amendment Due Process Clause. We distinguish the considerations applicable to each respective clause, and expand upon our previous opinion in State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978).

Appellant, James Howell, sold a small quantity of marijuana on August 8, 1979 to an undercover agent. Four months later, on December 19, 1979, an information was filed against him, but appellant was not arrested until December 5, 1980. Shortly thereafter on February 27, 1981, appellant filed a motion to dismiss, alleging only that his constitutional rights to a speedy trial had been violated. Consequently, this case does not involve, nor do we address, the applicability of Florida Rule of Criminal Procedure 3.191(a)(1). At the March 6, 1981 motion hearing, the appellant testified that he had been prejudiced by the delay in bringing him to trial, because he was unable to remember where he was or what he had been doing at the time the crime occurred. Further, he stated that neither his friends nor his roommate could remember his whereabouts at that time. He suspected that he may have been out of town on August 8th but was unsure.

No one testified for the state. Consequently, it was not determined why the arrest of appellant had been delayed for sixteen months after the occurrence of the crime and one year from the filing of the information. Appellant stated that he had not attempted to elude the authorities during this period. In fact, the appellant had been stopped on two occasions by police--once in St. Johns County for running a red light and on another occasion for falling asleep in his car at an apartment complex. Appellant contends that a routine radio check by the police for any outstanding warrants on either occasion would have resulted in an arrest. He also asserts that he had lived continuously in Gainesville, although he did admit to having moved three times prior to arrest.

The lower court voiced its concern about the delay between the date of the crime and defendant's arrest. This point manifests itself in the form of a fairly narrow legal question, to wit: Who has the burden of proof to account for the delay in arresting appellant? Should that burden be thrust on the state to show why the appellant had not been arrested in a more timely manner, or should it be placed on the appellant, since he was the one moving for dismissal of the charge against him? Although the lower court found there was no evidence regarding which of the two parties should explain the delay, it nevertheless denied the motion to dismiss. The appellant entered a plea of nolo contendere, specifically reserving the right to appeal the dispositive denial of the motion to dismiss. He alleges both a denial of his due process and speedy trial rights.

Initially, we note that delay during the four-month period between the occurrence of the crime and the filing of the information is one to be addressed under the Due Process Clause, while the delay during the fourteen-and-one-half month period between the filing of the information and the hearing on the motion to dismiss is one to be examined under the Speedy Trial Clause of the Sixth Amendment. United States v. MacDonald, --- U.S. ----, ---- - ----, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696, 702-703 (1982). The Sixth Amendment right to a speedy trial becomes effective at the time of arrest or indictment, whichever comes first, and it continues until the date of trial. United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir. 1982). The distinction, as to the basis for constitutional consideration of delay, also requires one to bear in mind the dichotomous purposes of and interests protected by the two clauses.

The Due Process Clause protects against an oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). However, the purpose of the clause is not to afford wide-ranging protections based on shallow claims of prejudicial delay. MacDonald, supra, at 456 U.S. at ----, 102 S.Ct. at 1508, 71 L.Ed.2d at 711 (Marshall, J., dissenting). The intended application of due process notions is a narrow one, although prevention of oppressive actual prejudice ¹ to the defense caused by the passage of time is the central concern of due process in a delayed arrest or indictment setting. Id. at --- U.S. at ----, 102 S.Ct. at 1502, 71 L.Ed.2d at 704; State v. Griffin, supra, at 695. Proof of actual prejudice does not make valid a due process assault on delayed arrest or indictment. Rather, it merely makes such a claim ripe for adjudication. Lovasco, supra, at 431 U.S. at 789, 97 S.Ct. at 2048.

The speedy trial right of the Sixth Amendment, on the other hand, involves a different and more encompassing purpose. Its protections were carefully analyzed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). Barker identified some of the problems stemming from a delayed trial as those including more time for increased plea bargaining to lesser offenses; opportunity for the commission of a crime by a defendant while the accused is on bond awaiting trial; a greater and more tempting opportunity to jump bail; increased incarcerations for those awaiting trial who have been arrested and unable to make bail; and the potential for jail overcrowding contributed to by those individuals in the immediate foregoing category. Barker, supra, at 407 U.S. at 519-520, 92 S.Ct. at 2186-87.

Perhaps the greatest evil which the Sixth Amendment speedy trial right proposes to counter is the potential for a witness's memory to lapse in regard to material matters as the delay for trial increases. Cf. Barker, supra, at 407 U.S. at 521, 92 S.Ct. at 2187. This not insignificant concern is a key point of distinction between the speedy trial right and all other constitutional rights of the accused, because it cuts both ways: "[T]he right to [a] speedy trial is unlike other constitutional rights because deprivation of the right may work to the accused's advantage. The fading of witnesses' memories with time may disadvantage the government far more than the accused because the government carries the burden of proof." United States v. Avalos, 541 F.2d 1100, 1110 (5th Cir.), reh. en banc denied, 545 F.2d 168 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977); cf. United States v. Edwards, 577 F.2d 883, 889-890 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). ²

Thus, both the purposes of the due process and speedy trial provisions, as well as the time periods to which each is applicable, are different. Similarly, the analysis for determining violations of the respective rights is different, although there is one underlying theme common to both rights: both seek to avoid actual prejudice, and, for all practical purposes, the prejudice that can result to a defendant due to a pre-arrest delay is often indistinguishable from that arising from a post-arrest delay. Griffin, supra, at 694.

In Griffin, we set forth the general standards involved in pre-arrest/indictment due process violations attributable to time delay by the state. We stated:

The authorities appear to agree, and we so hold that a pre-arrest due process deprivation cannot be quantified into a specific number of days. Many factors must be taken into consideration; among them are the reason the government assigns to justify the delay and the judicial discretion of the trial court in evaluating the circumstances. Prejudice to the accused is the most important factor in evaluating the question of due process deprivation. No matter how long the delay, if within the period of the statute of limitations, unless the accused can demonstrate that he has been prejudiced thereby, the delay, per se, will not justify dismissal.

Griffin, supra, at 695 (footnotes omitted).

The Griffin language is somewhat vague as to the specific test to be used in detecting a due process' deprivation due to time delay. The test has been further clarified by various federal appellate courts since Griffin, but due to a conflict in the different federal circuit courts of appeal, there are still unanswered questions as to the precise nature of the test. We will attempt to answer these questions for the benefit of the Florida bench and bar. In Avalos, the court, relying on the United States Supreme Court decision in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), and other fifth circuit decisions, observed that a due process violation exists if criminal defendants can show: "(1) that they incurred substantial prejudice as a result of the...