Perry v. State

Decision Date08 September 1982
Docket NumberNo. 53816,53816
Citation419 So.2d 194
PartiesCharles Lee PERRY v. STATE of Mississippi.
CourtMississippi Supreme Court

Mager A. Varnado, Jr., Gulfport, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, HAWKINS and PRATHER, JJ.

PRATHER, Justice, for the Court:

Charles Lee Perry was convicted for the crime of embezzlement and sentenced as an habitual offender to serve ten years in the state penitentiary by the First Judicial District of the Circuit Court of Harrison County. His appeal is based on an alleged denial of the rights to a speedy trial and assistance of counsel. We reverse.

I.

As a fifteen-year old in 1968, Perry was certified from the youth court to circuit court and pled guilty to charges of burglary and larceny. This resulted in the Harrison County Circuit Court sentencing him to one year in the state penitentiary. Subsequently, in 1975, he again pled guilty to similar charges from the same county and was sentenced to a five year term in the penitentiary. He was released on parole from the latter sentence in October of 1978.

On June 9, 1979, a 1975 Chevrolet Caprice automobile was stolen from a Harrison County citizen named Mack West. The car was eventually traced to Jackson, Mississippi, where it was located at the scene of a hit-and-run accident. Witnesses of the accident identified Charles Perry as the driver of the car. Perry was eventually apprehended by the Jackson police on July 25, 1979. The reason for the arrest was not clear in the record since Perry was wanted for parole violations, for the Harrison County charge, and for the "hit-and-run" accident. When notified of the arrest, Officer John McAdams of the Harrison County Sheriff's Department advised the Jackson police that authorities in Cleveland should have Perry first since he was a current suspect for burglary charges there which predated the automobile theft in Harrison County. Instead, Perry was first returned to Parchman after revocation of parole to serve out his prior sentence.

Meanwhile, the Harrison County felony charge against Perry was given to the district attorney's office of Harrison County on October 10, 1979, and was presented to the grand jury during that term, but no indictment was returned. However, on November 27, 1979, a detainer on the Harrison County charges was lodged at the Mississippi State Penitentiary by the Sheriff of Harrison County. No indictment was returned at the March 1980 session of the grand jury either but finally at the May 1980 session an indictment for grand larceny against Charles Lee Perry was returned. Nevertheless, Perry was never arraigned on this grand larceny indictment.

On July 31, 1980, Perry allegedly learned of the Harrison County detainer for the first time. Soon thereafter, he mailed a document styled "Demand to be returned for Trial/Motion to Dismiss/Demand for Trial/Motion for Appointment of Counsel" to the Sheriff of Harrison County. The document was prepared by the prison law library staff, and it contained a brief statement of the adverse conditions imposed on prisoners by detainers. The document stated in pertinent part:

EFFECTS OF DETAINER: The detainer interferes with Affiant's opportunities to participate in such programs as might decrease the length of his present term of confinement, or render the serving of it more bearable in that

(a) Mississippi Department of corrections inmates who have detainers lodged against them have reduced chances of being elevated to trusty status, and thus may lose opportunities to earn additional good-time or earned-time sentence reductions;

(b) Such inmates may not participate in the work-release program;

Furthermore, if affiant is held without trial on said detainer until his current sentence is completed, he will lose forever the chance that a sentence arising out of the detainer charge can be made to run concurrently with his present sentence.

The detainer, being unresolved, is a source of great anxiety to your affiant, causing him unrest and inability to plan for his future.

The above document was never filed with the circuit court at any time by the sheriff, nor was it acted upon. On December 23, 1980, the circuit judge ordered the Harrison County Sheriff to have Perry returned from Parchman for his trial date which was set on March 17, 1981.

Perry's sentence at the state penitentiary on his prior charges was completed on February 9, 1981, when he was processed for discharge. However, he was not discharged because of the Harrison County detainer and was held until the next day when Harrison County officials transported him from Parchman to Harrison County. On February 22, 1981, Perry filed a petition for appointment of an attorney, which was granted on February 24, 1981. Perry's appointed counsel first filed a habeas corpus petition reciting that Perry had not been indicted nor arraigned and that there was no probable cause for detention. The petition was abandoned though when counsel learned of the May 1980 indictment, and a subsequent motion to dismiss was filed by counsel on March 10, 1981. This latter motion recited that Perry had previously filed a request for a speedy trial and an appointed attorney while still in the penitentiary, but it had not been acted upon for nearly two years.

The hearing on the motion to dismiss followed on March 12, 1981. On cross-examination by the district attorney, Perry testified, without objection, that "they (the Parole Board) was going to reinstate my parole if I didn't have a detainer against me. And they asked me to file for it, and if I got off it they were going to reinstate my parole." He also claimed that he had been prejudiced by the prosecution's delay since he had lost the opportunity for concurrent sentencing. The defendant's counsel additionally argued that some prejudice might arise, depending on Perry's memory of the events.

During this motion hearing, the original of the July 31, 1980 Parchman petition for a speedy trial and appointment of counsel was discovered in the district attorney's file. The appointed defense counsel had prior access to the district attorney's file, but this motion was not discovered until the morning of the hearing.

At the conclusion of the above testimony and arguments, the circuit judge overruled the motion to dismiss on the ground that in his opinion the prejudice shown did not arise to the degree of prejudice required by law to dismiss the charges. At this time defendant's counsel also made a request for bond reduction from $20,000.00. That request was denied by the trial court since Perry was charged as an habitual offender, and his trial date set for five days later was unchanged.

No trial was had on this charge on March 17, as scheduled, nor was a continuance sought or granted. Thus, Perry's counsel renewed his motion to reduce the bond on March 19, 1981. The motion alleged that the district attorney's office had nolle prosequied the current grand larceny charges and was planning to reindict the defendant at the May, 1981 term on embezzlement charges on the same facts. The motion for reduction of bond was denied, and the defendant remained incarcerated, although no longer being prosecuted on the grand larceny charge.

On May 20, 1981 the grand jury returned an indictment charging Perry with embezzlement for the alleged criminal activity occurring on June 9, 1979. Perry was arraigned on May 29, 1981 and was convicted by jury trial on June 15, 1981. Thus, Perry was convicted more than two years after the crime occurred.

II.

The appellant's first contention is that he was denied the right to a speedy trial. Extended pretrial delay in criminal litigation is frequently claimed by criminal defendants as a deprivation of a fundamental right, but such a claim is seldom held to violate the speedy trial guarantees contained in constitutional and statutory provisions. G. Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 611 (1980). This no doubt results from the severity of the sole remedy recognized for violation of the denial of the right which calls for dismissal of the charges. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Turner v. State, 383 So.2d 489 (Miss.1980).

The speedy trial guarantee fulfills several purposes for the individual defendant. First, the guarantee enhances the fact-finding process by making it more likely that evidence and memories of witnesses remain readily available. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Second, the right prevents oppressive pretrial incarceration and it minimizes the anxiety and concern of the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Obviously, these concerns can be both aggravated and compounded in the case of an accused who is imprisoned. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). "No court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation." Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). Furthermore, the conditions under which an accused must serve his sentence, as in the instant case, may be greatly worsened by the pendency of an outstanding charge against him.

A defendant aggrieved by these delays may invoke several distinct sources of law in support of his right to a speedy trial. Perry based his argument on analogous Mississippi and United States constitutional guarantees. Miss.Const. art. 3, Sec. 26; U.S.Const. amends. VI & XIV. But neither constitutional provision contains a time frame within which a trial must be held.

Mississippi, like most states, has enacted a statute setting forth a time limitation for a defendant's trial computing from date of arraignment. Our Legislature enacted section 99-17-1 of the Mississippi Code Annotated (Supp.1981). The statute provides:

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