McDuffie v. State, F-81-513

• Decision Date: 27 September 1982
• Docket Number: No. F-81-513,F-81-513
• Citation: 1982 OK CR 150,651 P.2d 1055
• Parties: Clifford E. McDUFFIE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1055

651 P.2d 1055

Clifford E. McDUFFIE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-513.

Court of Criminal Appeals of Oklahoma.

Sept. 27, 1982.

An appeal from the District Court of Comanche County; William M. Roberts, District Judge.

Clifford E. McDuffie, appellant, was charged and convicted of the offense of Uttering a Forged Instrument, After Two Former Convictions of Felonies. He was

sentenced to twenty-one (21) years' imprisonment and appeals. AFFIRMED

Lonny G. Long, Lawton, for appellant.

Jan Eric Cartwright, Atty. Gen., Jimmy D. Givens, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Clifford E. McDuffie, was tried and convicted before a jury in the District Court of Comanche County, Oklahoma for the offense of Uttering a Forged Instrument, After Former Convictions of Felonies pursuant to 21 O.S.1981, § 1592, Case No. CRF-80-169. He was sentenced to twenty-one (21) years' imprisonment and he appeals.

On the twenty-second day of January, 1980, the appellant cashed a check payable to himself in the amount of $200.00 at Herbs Discount No. 2 grocery store in Lawton, Oklahoma. The check was drawn upon the account of "M and B Construction", a company which had closed the account some time prior to the cashing of the check. One of the co-owners of the business testified that the handwriting on the check was neither his nor his partner's.

As part of the check cashing policy, the appellant was required to place a thumbprint in red ink on the back of the check. The thumbprint was later used to identify the appellant as the person who passed the bogus check. The appellant identified the check at trial and admitted that he cashed it, but claimed it was given him by a third person unknown to him as compensation for work performed.

The appellant first alleges that he was denied the right to a speedy trial mandated by Okla.Const. Art. 2, § 20. The established test in this State for determining whether a defendant has been deprived of his right to a speedy trial consists of a balancing of four factors: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right to a speedy trial; and 4) the prejudice to the defendant arising out of the delay. Blades v. State, 619 P.2d 875 (Okl.Cr.1979); Bauhaus v. State, 532 P.2d 434 (Okl.Cr.1975); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Applying these considerations to the present case, we look first to the length of the delay: 264 days. We do not say that the delay was presumptively prejudicial, yet we deem it of sufficient length to necessitate inquiry into the remaining three factors. See, Barker v. Wingo, supra.

The second step in our analysis is to consider the delay in light of the reasons given therefore. A review of the record reveals that part of the delay is attributable to the effort to secure court appointed counsel who could defend the appellant without conflict of interest. The appellant was represented by two consecutive court appointed attorneys who were permitted to withdraw for various reasons before receiving the assistance of counsel presently representing him. A continuance which spanned approximately seventy-three days was granted at the appellant's request shortly after the third and final appointment of counsel. Another delay was due in part to the illness of the appellant's attorney and to the failure of a witness for the State to appear at the preliminary hearing. Lastly, a delay was caused by the appellant's request for a transcript of his preliminary hearing.

We find that none of the delays was a product of bad faith or deliberate attempt to slow the process by either party. Each delay was for good cause, and was necessary to further the ends of justice and ensure that the appellant receive a fair and impartial...