Jones v. State, F-78-175

Decision Date23 May 1979
Docket NumberNo. F-78-175,F-78-175
Citation595 P.2d 1344
PartiesRichard F. JONES, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BUSSEY, Judge:

Appellant, Richard F. Jones, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Garfield County, Case No. CRF-77-1094, of the offense of Uttering and Passing a Bogus Check, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1541.2. His punishment was fixed at ten (10) years' imprisonment, and from said judgment and sentence an appeal has been perfected to this Court.

Due to the nature of the assignments of error, only a brief recitation of the facts is necessary. The evidence established that on November 11, 1976, defendant purchased two suits at the S & Q Clothiers in Enid, Oklahoma. He paid for the suits with a check in the amount of $405.29, drawn on the First National Bank of Clinton, Oklahoma. The check was presented to the bank for payment and was returned unpaid because of insufficient funds. Defendant opened the account on November 8, 1976, with an $80.00 cash deposit. Approximately 16 to 18 other checks were subsequently drawn on the account during the month of November. These checks were likewise not paid by the bank due to insufficient funds. Restitution was made on the check in March, 1977, after the charges were filed.

Defendant asserts in his first assignment of error that he was denied his constitutional right to a speedy trial.

The record reflects the following occurred in chronological order: (1) information filed December 13, 1976; (2) defendant made initial appearance on March 15, 1977; preliminary hearing set for March 24, 1977, and defendant released on bond; (3) preliminary hearing continued to April 13, 1977; (4) preliminary hearing continued to April 14, 1977, because of absence of defendant; (5) defendant failed to appear on April 14, 1977; bond ordered forfeited and a bench warrant issued for his arrest; (6) defendant appeared on bench warrant on June 3, 1977; (7) preliminary hearing held on June 23, 1977, and defendant ordered bound over on June 30, 1977; (7) arraignment held on July 7, 1977, and defendant requested the case to be set on the next jury term; (8) on September 16, 1977, the date of jury trial, the State was permitted to dismiss without prejudice for the purpose of refiling in a different manner; (9) case refiled on September 16, 1977, charging defendant with Uttering and Passing a Bogus Check, After Former Conviction of a Felony; (10) motion to dismiss filed for lack of speedy trial on October 5, 1977; (11) October 27, 1977, defendant stipulated as to the evidence presented in his first preliminary hearing and was ordered bound over for trial; (12) on December 6, 1977, defendant reurged his motion to dismiss, which was overruled. Trial was had and the defendant was found guilty.

This Court has previously adopted the principles and guidelines to be utilized in resolving the question of whether a defendant has been afforded his constitutional right to a speedy trial as set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as follows: Length of delay, the reason for the delay, the defendant's assertion of his rights, and prejudice to the defendant. See Bauhaus v. State, Okl.Cr., 532 P.2d 434 (1975). We have likewise held that these factors are not absolute but must be balanced together with other circumstances as may be relevant. See Anderson v. State, Okl.Cr., 556 P.2d 1006 (1976).

We will consider the length of delay and the reason for the delay together, inasmuch as they are closely interwoven. Defendant argues that the length of delay of one year and three days between the date he was originally charged and the date he was tried was excessive. We must disagree with this assertion. The information was filed on December 13, 1976, but defendant did not make his initial appearance until March 15, 1977. He was released on bond and his preliminary hearing scheduled for April 13, 1977. Defendant failed to appear for preliminary hearing and was returned before the court on a bench warrant on June 3, 1977. We thus have a period of approximately six months during the pendency of this action during which time the defendant was at large and was being sought by the authorities. We have previously held that a defendant should not be permitted to urge a dismissal for delay when it is clear that he or she contributed to such delay. See Rose v. State, Okl.Cr., 509 P.2d 1368 (1973), and Bauhaus v. State, supra.

The record reflects that thereafter on June 6, 1977, until the scheduled date of trial, December 16, 1977, the defendant's case moved with proper dispatch. The State was permitted to dismiss the case without prejudice on that date for the purpose of refiling in a different manner. The case was refiled and ultimately came on for trial on December 6, 1977. The delay occasioned by the State was only a matter of three months, rather than one year and three days, as argued by the defendant. We are of the opinion that a delay of such a period of time, standing alone, is not sufficient to deprive the defendant of his right to a speedy trial. See Wabaunsee v. State, Okl.Cr., 554 P.2d 36 (1976). We would further observe that there was no showing that the State attempted to delay the trial in order to hamper defendant's defense. The delay necessitated by the State's refiling of an information alleging after former conviction of a felony was sufficient to justify the time period of less than three months. See State v. Durham, Okl.Cr., 545 P.2d 805 (1976).

Turning now to the third factor to be considered, the record reflects that defendant requested on July 7, 1977, that his case be placed on the next jury docket. This request was apparently complied with, and defendant's case was scheduled for trial on September 16, 1977. Defendant first asserted his right to a speedy trial on said date after the State was permitted to dismiss and refile. The defendant did properly preserve the record by timely asserting his right to a speedy trial.

We thus move on to the fourth and final factor, prejudice to the defendant. Although the defendant argues that the pretrial incarceration caused him anxiety and concern, we are of the opinion that such standing alone does not constitute sufficient prejudice. The record does not reflect, nor does defendant assert, that the delay impaired his defense in any manner. See Speer v. State,...

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16 cases
  • State v. Holtslander, 13264
    • United States
    • Idaho Supreme Court
    • June 5, 1981
    ...requiring a defendant to show actual prejudice, see, e. g., State v. Knapp, 123 Ariz. 402, 599 P.2d 855 (Ariz.App.1979); Jones v. State, 595 P.2d 1344 (Okl.Cr.App.1979), I would agree with that written in Jones v. Superior Court, supra, and Dickey v. Florida, supra. Where the delay is unrea......
  • Henager v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 4, 1986
    ...should not be allowed to claim violation of his rights to a speedy trial. Fields v. State, 648 P.2d 43 (Okl.Cr.1982); Jones v. State, 595 P.2d 1344 (Okl.Cr.1979). A defendant who is incarcerated need not demand a speedy trial. It is presumed that the law makes the demand for him. McDuffie v......
  • Woodward v. Morrissey
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • November 19, 1999
    ...court or prosecute the defendant as an adult in the criminal division of the district court); Jones v. State, 1979 OK CR 45, ¶ 11, 595 P.2d 1344, 1348 (appellant alleges he was denied due process when the District Attorney charged him with after former conviction of a felony after appellant......
  • West v. State, F-88-1094
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 14, 1990
    ...affidavit is fatal. Rogers v. State, 721 P.2d 805, 807 (Okl.Cr.1986); Smith v. State, 644 P.2d 106, 108 (Okl.Cr.1982); Jones v. State, 595 P.2d 1344, 1349 (Okl.Cr.1979); Nichols v. State, 555 P.2d 70, 72 (Okl.Cr.1976); Crosswhite v. State, 317 P.2d 781, 785 Further, a motion for continuance......
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