Speer v. State, F--76--63

Decision Date02 August 1976
Docket NumberNo. F--76--63,F--76--63
Citation553 P.2d 508
PartiesIra Leo SPEER, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Judge:

The Appellant, Ira Leo Speer, hereinafter referred to as defendant, was charged, tried after waiving a jury, and convicted of the crime of Escape from the State Penitentiary in the District Court of Pittsburg County, Case No. F--75--14. From a judgment and sentence assessing punishment at two (2) years in the state penitentiary to be served after the expiration of any prior sentence, the defendant has perfected his timely appeal.

After an in camera hearing before the trial court on the defendant's motion to dismiss for lack of a speedy trial, the defendant agreed to stipulate to all of the State's testimony. Briefly stated the State's testimony would have been that the defendant was incarcerated in the State Penitentiary in Pittsburg County in the 28th day of June, 1973, for a term of eighteen (18) years after a conviction for second degree burglary, after former conviction of a felony. On the 5th day of January 1975, a line count of prisoners after a prison fire disclosed that the defendant was missing without permission. On January 9, 1975, the defendant was taken into custody at a residence near Boswell, Oklahoma, and returned to the penitentiary at McAlester and the custody of the warden. A certified copy of the prior burglary conviction was introduced by the State and admitted into evidence over objection of the defendant. The State then rested and the defendant demurred to the evidence and renewed his motion to dismiss. Both the demurrer and the motion were overruled by the trial court. The defendant presented to defense.

The defendant's sole assignment of error contends that the trial court erred in not granting a motion to dismiss because of lack of speedy trial since said denial of a constitutional and statutory right prejudiced the defendant entitling him to dismissal of the charge.

The record reveals that the defendant was initially charged on January 13, 1975, and preliminary arraignment was held on January 14, 1975, at which time the defendant objected to the attorney appointed by the trial court since that particular attorney also served as city prosecutor. At that time the trial court set preliminary hearing for February 10, 1975, and stated that the next attorney on the list would be appointed to represent the defendant at the preliminary hearing. The preliminary hearing was then continued to February 14, 1975. However, the record shows that the preliminary hearing was not held on the 14th of February, and that on April 4, 1975, the defendant, pro se, filed a motion for speedy trial or in the alternative for dismissal of the charges. On the 24th day of April, 1975, a preliminary hearing was held at which time the defendant was represented by another court appointed defense counsel. At the end of the preliminary hearing the defendant was bound over for trial with arraignment set for May 1, 1975. At arraignment the defendant entered a plea of not guilty and was given 20 days to file motions. On the 29th of May, defendant was granted three (3) further days in which to...

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  • Jones v. State, F-78-175
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 23, 1979
    ...prejudice. The record does not reflect, nor does defendant assert, that the delay impaired his defense in any manner. See Speer v. State, Okl.Cr., 553 P.2d 508 (1976). Balancing the four factors together with other relevant circumstances, we are of the opinion that defendant was not deprive......

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