State v. Allen, 20491

• Decision Date: 15 August 1977
• Docket Number: No. 20491,20491
• Citation: 237 S.E.2d 64,269 S.C. 233
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ambry DeWitt ALLEN, Jr., Charles Waymon Patrick and Daniel Warren, of whom Ambry DeWitt Allen, Jr. and Charles Waymon Patrick are, Appellants.

Page 64

237 S.E.2d 64

269 S.C. 233

The STATE, Respondent, v. Ambry DeWitt ALLEN, Jr., Charles Waymon Patrick and Daniel Warren, of whom Ambry DeWitt Allen, Jr. and Charles Waymon Patrick are, Appellants.

No. 20491.

Supreme Court of South Carolina.

Aug. 15, 1977.

C. Rauch Wise, Greenwood, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Joseph R. Barker and Richard P. Wilson, Columbia, and Solicitor William T. Jones, Jr., Greenwood, for respondent.

LEWIS, Chief Justice.

Appellants Ambry DeWitt Allen, Jr., and Charles Waymon Patrick were charged, along with Daniel Warren, with the commission of a burglary in Abbeville County, South Carolina, during which the owner of the home was shot. They have appealed from their subsequent conviction and sentence to imprisonment for life. The exceptions charge error (1) in the refusal to dismiss the indictment because of the alleged failure to grant a speedy trial, (2) in the refusal to grant a severance, (3) in the admission of certain evidence, and (4) in failing to conduct an evidentiary hearing into the charge, made during the trial, of ineffective assistance of counsel.

The first issue concerns the contention that the trial court erred in failing to dismiss the indictment with prejudice because of the alleged failure to grant a speedy trial.

The burglary in South Carolina occurred on October 11, 1973. On October 24, 1973, thirteen days later, appellants were arrested on bank robbery charges in the State of Georgia, for which they were subsequently convicted and committed to the Georgia Department of Corrections.

Arrest warrants were issued for appellants in this State in November 1973. They were indicted by the grand jury in September 1975, at which time they were first brought back to South Carolina and first notified of the charges pending in this State. However, upon motion of appellants, a continuance of the trial beyond the September 1975 term was granted and appellants were returned to the State of Georgia. Thereafter, they were again brought into South Carolina and were tried in March 1976.

The allegation that appellants were denied their right to a speedy trial is based upon two grounds. First, it is argued that appellants were denied the right to a speedy trial because of the unexplained delay of approximately twenty-two (22) months between the issuance of the arrest warrants in November 1973 and the service of the warrants in September 1975; and, second, because of the return of the appellants to the State of Georgia without trial of the charges against them in violation of the provisions of the Interstate Agreement on Detainers, Section 17-11-10 et seq. of the 1976 Code of Laws.

The delay in this case fails to sustain the claim of appellants that they were denied their right to a speedy trial. Their right to a speedy trial attached in September 1975, at the time the arrest warrants were served; and not in November 1973 when the warrants were issued, as contended by appellants. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. In Marion, the United States Supreme Court declined to extend the reach of the speedy trial provisions of the Sixth Amendment to the period prior to arrest, stating:

. . . it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

The period between the service of the arrest warrants and trial in this case was about six (6) months. This interval of delay fails to support the claim that the right to a speedy trial was denied. In any event, appellants at no time demanded a speedy trial but, on the contrary, requested and obtained a continuance in September 1975 when the State was ready for trial. Such action amounts to a waiver of their right to now contend that they were deprived of the right to a speedy trial of the charges against them. Wheeler v. State, 247 S.C. 393, 147 S.E.2d 627; State v. Sarvis, 265 S.C. 144, 217 S.E.2d 38.

Assuming however that the speedy trial provision of the Sixth Amendment attached at the time the arrest warrants were issued in November 1973, there is no showing that the delay caused any impairment of the ability of appellants to defend themselves.

Appellants' additional contention, that the trial court erred in refusing to dismiss the indictment against them because they were returned to Georgia in September 1975 without a trial of the charges against them, involves a consideration of the Interstate Agreement on Detainers, Section 17-11-10, supra, particularly Articles IV(c) and IV(e) of that statute. These sections are as follows:

IV(c) In respect to any proceedings made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

IV(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Article V(e), referred to in Article IV(e), states: "At the earliest practical time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state."

Appellants were brought from Georgia, where they were serving a prison term, to South Carolina in September 1975 for trial. The State was ready for trial but the trial was continued beyond the term of court at the request of appellants' counsel. Since the trial had been so continued, appellants were returned to the State of Georgia. Appellants contend that the lower court should have granted their motion to dismiss the indictment since they were not tried before their return to Georgia, relying upon the quoted provisions of Section IV(e). There is no merit in this contention.

The provision in Section IV(e), for dismissal of an indictment where a prisoner is returned to the original place of imprisonment without a trial, has no application when, as here, the State is ready for trial and the prisoner requests and obtains a continuance. The purpose of the Interstate Agreement on Detainers is, as stated in Article I of Section 17-11-10, supra, to encourage and effectuate "the expeditious and orderly disposition" of charges outstanding against prisoners detained in other jurisdictions so as to eliminate "uncertainties which obstruct programs of prisoner treatment and rehabilitation." This purpose is promoted by requiring the receiving State to expeditiously proceed to a trial of the case. However, the statute assumes that the prisoner wants a speedy disposition of his case and is not seeking a continuance.

Where a prisoner seeks and obtains a delay of his trial in the receiving State and is returned to the sending State to await trial, it does not mean that he waives his constitutional right to a speedy trial, but it does remove his case from the scope of the automatic dismissal provisions of the statute. In the absence of a showing of prejudice from his return to the...