Nickerson v. State

• Decision Date: 28 May 1993
• Docket Number: CR-91-1566
• Citation: 629 So.2d 60
• Parties: Samuel James NICKERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 60

629 So.2d 60

Samuel James NICKERSON v. STATE.

CR-91-1566.

Court of Criminal Appeals of Alabama.

May 28, 1993.

Rehearing Denied Aug. 13, 1993.

Certiorari Denied Oct. 29, 1993

Alabama Supreme Court 1921829.

L. Dan Turberville, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

On September 12, 1984, the appellant, Samuel James Nickerson, after a jury trial, was convicted on two counts of robbery in the first degree, in violation of § 13A-8-41, Code of Alabama 1975. On September 21, 1984, the appellant pleaded guilty to and was subsequently convicted on two counts of robbery in the second degree, in violation of § 13A-8-42, Code of Alabama 1975. The appellant was sentenced to life imprisonment on each conviction, pursuant to the Habitual Felony Offender Act.

The appellant appealed his September 12, 1984, convictions for first degree robbery. On May 28, 1987, this Court remanded the appellant's case concerning those convictions to the trial court for that court to conduct an evidentiary hearing to determine whether the State had exercised its peremptory challenges in a racially nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At the hearing held on October 13, 1987, the trial court found that the State had failed to supply race-neutral reasons for its peremptory strikes and ordered that the appellant be granted a new trial. On October 26, 1989, the trial judge made the following notation in the appellant's file: "Close this file, no further action necessary. Def. in pen on other cases."

On March 6, 1992, the appellant filed a petition for a writ of mandamus with the Alabama Supreme Court, requesting that the trial court be ordered to schedule a new trial. On March 10, 1992, the appellant filed a petition for a writ of mandamus with this court. The Alabama Supreme Court granted the writ and trial was set for May 11, 1992. This court, in an order issued on March 16, 1992, instructed the State, pursuant to Rule 21, A.R.Cr.P., to answer and to show cause why the appellant had not been retried. The State's answer was not made a part of the record.

On May 11, 1992, the appellant pleaded guilty to both counts of robbery in the first degree and was sentenced to 20 years' imprisonment on each count. The sentences were to run concurrently with the sentence imposed in the appellant's second degree robbery convictions received on September 21, 1984. When he entered his guilty pleas, the appellant reserved the right to appeal the issue of the denial of a speedy trial.

The issue in this case is whether a defendant has a constitutional right to a speedy trial when he is seeking a retrial and, if so, whether in this case that right was violated.

In other jurisdictions, where a defendant has claimed that he was denied his right to a speedy trial on retrial or on appeal and the claim was not based on an existing statute or on the federal Speedy Trial Act but rather on constitutional grounds, courts have consistently analyzed such claims pursuant to the guidelines in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See e.g., United States v. Bizzard, 674 F.2d 1382; Millard v. Lynaugh, 810 F.2d 1403 (5th Cir.1987), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.1990), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); Coe v. Thurman, 922 F.2d 528, 532 (9th Cir.1990); Roundtree v. State, 192 Ga.App. 803, 386 S.E.2d 548 (Ga.App.1989); Ake v. State, 778 P.2d 460 (Okl.Cr.App.1989); Mitchell v. State, 572 So.2d 865 (Miss.1990); Lukehart v. State, 32 Ark.App. 152, 798 S.W.2d 117 (1990); State v. Ferguson, 576 So.2d 1252 (Miss.1991); Harrison v. State, 843 S.W.2d 157 (Tex.App.1992).

This Court, in State v. Clay, 577 So.2d 561 (Ala.Cr.App.1991), considered an issue analogous to the one presented here. Clay initially pleaded guilty to and was convicted of theft of services in the second degree, in violation of § 13A-8-10.2, Code of Alabama 1975. This Court affirmed that conviction in an unpublished memorandum. See Clay v. State, 553 So.2d 137 (Ala.Cr.App.1989). The Alabama Supreme Court reversed this court's judgment and remanded the cause with instructions that this court remand to cause to the trial court. See Ex parte Clay, 562 So.2d 1307 (Ala.1990). Pursuant to the Supreme Court's instructions, this court remanded the cause to the trial court for that court to determine whether there had been a plea agreement between Clay and the State that had not been honored at Clay's sentencing hearing. The trial court found, based on facts stipulated to by the State and Clay, that a plea agreement between the parties existed and that that agreement had not been followed at sentencing. Thereafter, Clay was allowed to withdraw her initial plea of guilty. Approximately three months later, the trial court dismissed the case, stating that Clay had been denied her right to a speedy trial. The State appealed the dismissal. On appeal, this Court, after reviewing the trial court's dismissal of Clay's case on speedy trial grounds, held that Clay had not been denied the right to a speedy trial because there was "no one delay which was presumptively prejudicial." That decision was based on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). This Court reversed the judgment and remanded the cause to the trial court with instructions that that court reinstate the charge against Clay. In reaching this decision, this Court divided the time from the date of the indictment until the date of dismissal into the following four periods for the purpose of analyzing whether the delay during any particular period was presumptively prejudicial: (1) the time from the indictment until Clay entered her guilty plea; (2) the time from the guilty plea until Clay was sentenced; (3) the time between the notice of appeal until the date the final judgment of remand was issued; and (4) the time the final judgment of remand was issued until the date the trial was scheduled and the case was dismissed.

For purposes of addressing the issue presented here, however, only the fourth time period considered in Clay is germane. In this case, like in Clay, this Court must determine whether the delay that occurred from the time the judgment in the appellant's original case was reversed on appeal until he entered his guilty plea (i.e., May 11, 1992) was presumptively prejudicial. See Judge Bowen's special concurrence in State v. Clay, wherein he stated:

"[T]he only period of time relevant in this case is the period of time from the date the appellant's case was reversed on appeal until the date on which she would have been tried had the circuit court not dismissed the cause for denial of a speedy trial. That is clearly the period of time considered under the Federal Speedy Trial Act when a case is retried after appeal. See 18 U.S.C. § 3161(e) (1988). See generally Project: Nineteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1988-1989, 78 Geo.L.J. 699, 991 (1990)."

577 So.2d at 564.

Under the Speedy Trial Act, the period that is to be measured in cases involving a retrial begins with the " 'action occasioning the retrial.' " United States v. Rivera, 844 F.2d 916, 919 (2d Cir.1988). The Speedy Trial Act provides:

" 'If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final.' "

Id. Thus, where an appellate court's action requires a retrial, the time period begins when the appellate court issues its mandate. U.S. v. Kington, 875 F.2d 1091, 1109 (5th Cir.1989).

Moreover, "[t]he time between a conviction and a reversal which requires retrial is clearly not counted for speedy trial purposes. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)." United States v. Bizzard, 674 F.2d 1382 (11th Cir.1982), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Other states that base their analysis of the speedy trial issue in situation on the constitutional standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), also begin the period on the date of reversal, where appellate action requires the retrial. State v. Ferguson, 576 So.2d 1252 (Miss.1991).

However, in this case, it was not the appellate court's remand that constituted the action requiring retrial and triggered the beginning of that period for speedy trial purposes, but rather the trial court's determination that the State had failed to supply race-neutral reasons for its peremptory challenges and that the appellant was entitled to a new trial (October 13, 1987).

Furthermore, in this case, the appellant was clearly faced with a pending charge after the remand, despite the notation by the trial court in the appellant's file. Cf. United States v. Mize, 820 F.2d 118, 121 (5th Cir.1987), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355 (1987). In United States v. Mize, supra, the appellant's conviction was reversed on appeal, the appellate court noting that a retrial was prohibited by the Double Jeopardy Clause of the Fifth Amendment. The retrial did not begin until 330 days after the appellate court's decision, well outside the 70-day limit provided for in the Speedy Trial Act. The court, in that case, held that the purpose of the Speedy Trial Act...