Moore v. State, 07-59013

• Decision Date: 17 January 1990
• Docket Number: No. 07-59013,07-59013
• Citation: 556 So.2d 1031
• Parties: Earl MOORE, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1031

556 So.2d 1031

Earl MOORE, Jr. v.STATE of Mississippi.

No. 07-59013.

Supreme Court of Mississippi.

Jan. 17, 1990.

Rehearing Denied March 7, 1990.

Gail D. Nicholson, Chester D. Nicholson, Nicholson & Nicholson, Gulfport, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ANDERSON and ROBERTSON, JJ.

HAWKINS, Presiding Justice, for the Court:

Earl Moore, Jr., appeals his conviction of grand larceny and, as a habitual offender under Miss.Code Ann. Sec. 99-19-81(1985), for which he was sentenced to five years imprisonment by the circuit court of the second judicial district of Harrison County.Because there was a violation of Moore's right to be tried within 270 days of his arraignment under Miss.Code Ann. Sec. 99-17-1(1986), we reverse and discharge the appellant.

FACTS

We only state the facts necessary to the disposition of this case.Moore was indicted by the grand jury on April 9, 1986, for a January 13, 1986, larceny of items taken from a Biloxi store.On April 30he filed a waiver of arraignment and entered a plea of not guilty.His trial date was set for July 14.On July 14 an order was entered sustaining the State's motion to nolle prosequi in order to re-indict Moore as a habitual offender under Miss.Code Ann Sec. 99-19-81.On August 15he was re-indicted for the same offense, with the habitual offender charges added.He was arraigned a second time on September 19, 1986.

On February 10, 1987, the defense filed a motion to quash the indictment for failure to comply with the statutory 270-day rule.On March 12 a second motion to quash was filed for the same reason.On June 18 the circuit judge signed an order overruling the motion to quash, entered it as of July 1, and it was filed July 3.On August 20 a third motion to quash was filed, and renewed prior to jury selection, all of which were overruled.Trial was had on August 26, 1987, resulting in Moore's conviction.

There was no motion made by the defendant for a continuance or any reason on his part to cause any delay.Neither did the State ask for any delay, except that occasioned by the nolle prosequi.

LAW

This is not a case in which any justification was attempted for the delay in Moore's trial.See: Fisher v. State, 532 So.2d 992(Miss.1988)(no violation of constitutional or statutory right to speedy trial by delay caused by defendant's appeal of unrelated death sentence and court was justified in choosing not to expend scarce judicial and prosecutorial resources);Williamson v. State, 512 So.2d 868(Miss.1987)(congested court docket);Reed v. State, 506 So.2d 277(Miss.1987)(no violation of statutory right to speedy trial by delay caused by plea negotiations);Nations v. State, 481 So.2d 760(Miss.1985)(judicial determination of good cause for granting a continuance and defendant's acquiescence to continuance due to withdrawal of defense counsel);State v. Sistrunk, 404 So.2d 564(Miss.1981)(defendant failed to object to continuances and failed to assert his right to speedy trial);Diddlemeyer v. State, 398 So.2d 1343(Miss.1981)(constitutional right to a speedy trial not violated by delay due to fact that grand jury was not in session when the crime was committed and crowded court docket);Carlisle v. State, 393 So.2d 1312(Miss.1981)(neither constitutional nor statutory right to speedy trial violated where defendant neither asserted right to speedy trial nor alleged any prejudice that flowed from trial delay);Atkinson v. State, 392 So.2d 205(Miss.1980)(statutory right to a speedy trial not violated by delay due to reversal of conviction on appeal and remand for new trial);Durham v. State, 377 So.2d 909(Miss.1979)(no violation of defendant's constitutional right to speedy trial by continuance granted due to death in defense counsel's family and delay caused by continuance granted defendant's court appointed counsel for preparation).

The relevant dates are as follows:

11386  Date of Crime
                40986  Indictment
                43086  "Waiver of Arraignment" filed
                71486  Date set for trial; Order Nolle Prosequi entered
                81586  Reindictment
                91986  2nd Arraignment
                21087  1st Motion to Quash pursuant to 270 Day Rule

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