Morris v. McGee

Decision Date26 August 1970
Docket NumberCr. N
PartiesIn the Matter of the Application of Jerry D. Morris for an Original Writ to Withdraw Detainer and Dismiss Criminal Complaint. Jerry D. MORRIS, Petitioner, v. Morrell McGEE, Sheriff, and Maurice E. Cook, State's Attorney, of BowmanCounty, North Dakota, Respondents. o. 385.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Federal due process mandatorily requires that when a person makes a demand for a speedy trial, the prosecuting State must make a diligent, good-faith effort to bring him to trial. The filing of a detainer alone is not sufficient to indicate good faith and diligence on the part of State law enforcement officials.

2. A defendant who demands but does not receive an immediate trial is not ipso facto entitled to his discharge and there must be at least some showing of prejudice in addition to a lapse of time.

3. Incarceration in another jurisdiction is not an excuse for inaction by law enforcement officials over a substantial period of months, but it does have an immediate bearing upon the reasonableness of the interval between the charge and the trial.

4. Consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the speedy-trial clauses of the Federal and State Constitutions.

5. The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality on the need to have charges promptly exposed.

John A. Amundson, Bowman, for petitioner.

Helgi Johnanneson, Atty. Gen., Paul M. Sand, First Asst. Atty. Gen., Bismarck; and Maurice E. Cook, State's Atty., Bowman County, Bowman, for respondents.

PAULSON, Judge.

Jerry D. Morris, presently imprisoned in the State Penitentiary at Sioux Falls, South Dakota, has filed a petition in this Court, requesting that the Court, under its original jurisdiction, direct the sheriff of Bowman County, North Dakota, to withdraw the detainer against petitioner which was mailed to the warden of the South Dakota State Penitentiary in the form of a warrant of arrest, and that this Court order the state's attorney of Bowman County to have the criminal complaint against petitioner dismissed. The proceeding is not here on appeal.

Petitioner alleges that he has done everything within his power to secure a speedy trial in North Dakota. He urges that he was never brought to trial in this State because of the bad faith and lack of diligence of the North Dakota officials; and that said detainer has been and is a great hardship to him while he is a prisoner in South Dakota because the existence of such a detainer has prohibited him from earning a reduction in time to be served, because of good behavior, and also has deprived him of the further benefit of being eligible for a position as a prison trusty. The facts in this case were settled by stipulation of the attorneys in open court and are as follows:

On April 15, 1968, a criminal complaint charging Jerry D. Morris, the petitioner herein, with the crime of burglary, as defined in § 12--35--02, North Dakota Century Code, issued out of Bowman County Justice Court. On the same date, the county justice issued a warrant of arrest for Jerry D. Morris, and at that time the Bowman County state's attorney was informed that Jerry D. Morris was in Miner County, South Dakota, being held on a burglary charge. A North Dakota warrant was filed against Mr. Morris in Miner County, South Dakota, on April 16, 1968, at the time of his arraignment in South Dakota. On May 24, 1968, petitioner became an inmate of the South Dakota Penitentiary at Sioux Falls, South Dakota. He had been sentenced to that institution for a term of two years and nine months, arising out of his plea of guilty to said felony charge. From that date on he became and up to the present time he has remained an inmate of that institution. On April 9, 1969, Morrell McGee, sheriff of Bowman County, North Dakota, mailed to the warden of the State Penitentiary at Sioux Falls, South Dakota, a warrant of arrest as a detainer against the petitioner. The delay in the mailing of the warrant of arrest against petitioner was due to the fact that the sheriff and the state's attorney of Bowman County believed that the previous warrant filed with the authorities of Miner County, South Dakota, prior to petitioner's hearing, had accompanied the petitioner's commitment papers which had been forwarded to the prison authorities at Sioux Falls. Petitioner, on April 11, 1969, was notified by the South Dakota prison authorities that the detainer had been received. On April 24, 1969, petitioner wrote to the Bowman County sheriff, asking him to formally file this felony charge against the petitioner and to forthwith transport him to Bowman County for an immediate trial. He requested, as an alternative, that the charges against him be dismissed. A copy of this letter was forwarded to the Attorney General of the State of North Dakota at Bismarck. Maurice E. Cook, Bowman County state's attorney, wrote to the petitioner on May 16, 1969, informing him that petitioner could have a trial at any time, provided he would waive extradition and could secure temporary release from the South Dakota penitentiary. On June 5, 1969, petitioner executed and mailed to the North Dakota Supreme Court his petition for an original writ of habeas corpus or, in the alternative, for injunctive relief. Proceedings for the extradition of petitioner were initiated by the Bowman County state's attorney and approved by the Attorney General of the State of North Dakota. On June 26, 1969, North Dakota Governor William L. Guy made demand by a requisition warrant upon the South Dakota executive authority for the extradition of the petitioner from the State of South Dakota to the State of North Dakota. The Clerk of the North Dakota Supreme Court, on July 3, 1969, transmitted to the petitioner a copy of this Court's order dated July 2, 1969, wherein the petitioner's application for a writ of habeas corpus or, in the alternative, for injunctive relief, was denied, upon the ground that extradition proceedings had previously been initiated for petitioner's return to North Dakota for a speedy trial. On July 22, 1969, petitioner signed a demand for a speedy trial and a waiver of extradition from the State of South Dakota to the State of North Dakota; and on the same date petitioner signed a waiver of extradition from the State of North Dakota to the State of South Dakota, together with a promise to return voluntarily to the South Dakota Penitentiary after completion of his trial and upon and demand of the State of South Dakota.

In North Dakota Governor also executed an agreement whereby the State of North Dakota would assume all costs for the removal and return of Jerry D. Morris from the State of South Dakota to the State of North Dakota for the purposes of trial in Bowman County, North Dakota, on the burglary charge. John E. Adams, an Assistant Attorney General of the State of North Dakota, wrote the petitioner on October 20, 1969, and advised him that appropriate papers had been submitted to the State of South Dakota for petitioner's extradition to the State of North Dakota for trial.

Petitioner continued his correspondence with the state's attorney of Bowman County, North Dakota, demanding a speedy trial and requesting that the detainer against him be withdrawn because it affected his eligibility for parole and prevented him from being eligible to become a prison trusty. On March 23, 1970, petitioner filed pro se his petition with this Court, making application to have the detainer against him withdrawn and the criminal charges against him dismissed in Bowman County, North Dakota, which petition was accompanied by a pauper's affidavit. Thereafter, this Court directed the district court of Bowman County to appoint an attorney for petitioner; an application for an order to show cause was filed by the petitioner's...

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4 cases
  • Hughey v. State
    • United States
    • Mississippi Supreme Court
    • September 2, 1987
    ...Renton, 480 P.2d at 626. A filing of detainer alone is insufficient to satisfy the good-faith, diligent requirement. Morris v. McGee, 180 N.W.2d 659, 664 (N.D.1970). Here, since there was a delay of 33 months between the time of indictment and the time of trial, the State had the burden of ......
  • State v. Starnes
    • United States
    • South Dakota Supreme Court
    • September 6, 1972
    ...right to a speedy trial and the conviction should stand.' Opheim is cited by our sister state, North Dakota, in Morris v. McGee, August 1970, 180 N.W.2d 659, as well as Hooey, supra, for an indication 'that a defendant who demands but does not receive an immediate trial is not ipso facto en......
  • State v. Erickson, Cr. N
    • United States
    • North Dakota Supreme Court
    • May 12, 1976
    ...Explanatory Note, Rule 48, Dismissal, North Dakota Rules of Criminal Procedure. The North Dakota Supreme Court stated in Morris v. McGee, 180 N.W.2d 659 (N.D.1970), following Dickey v. State of Florida, 398 U.S. 30, 90 S.Ct. 1564, 25 L.Ed.2d 26 (1970), that 'consideration must be given to a......
  • State v. Runck
    • United States
    • North Dakota Supreme Court
    • December 29, 1987
    ...amount of delay is attributable to Runck's incarceration in a federal prison outside of North Dakota. We recognized in Morris v. McGee, 180 N.W.2d 659, 663 (1970), that defendants incarcerated in another jurisdiction are entitled to a speedy trial.4 Article I, Section 12 of the North Dakota......

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