State v. Avelar, 23240

• Court: United States State Supreme Court of Idaho
• Citation: 931 P.2d 1218,129 Idaho 700
• Docket Number: No. 23240,23240
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Antonio AVELAR, Defendant-Appellant. Boise, November 1996 Term
• Decision Date: 22 January 1997

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931 P.2d 1218 129 Idaho 700 STATE of Idaho, Plaintiff-Respondent,
v.
Antonio AVELAR, Defendant-Appellant. No. 23240. Supreme Court of Idaho, Boise, November 1996 Term.
Jan. 22, 1997.

Page 1219

Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General, argued, Boise, for respondent.

Nevin, Kofoed & Herzfeld, Dennis A. Benjamin, Boise, argued, for appellant.

TROUT, Justice.

This is an appeal from a judgment of conviction and sentence after a retrial. The Court of Appeals affirmed the conviction and sentence, and this Court granted review limited solely to the issue presented by the trial court's denial of appellant's motion to dismiss. Appellant contends that his right to a speedy trial under Idaho Code § 19-3501 has been violated. We affirm the decision of the district court.

I.

BACKGROUND

On November 28, 1989, defendant-appellant Antonio Avelar was charged with delivery of a controlled substance, cocaine. On March 1, 1991, a jury found him guilty, and the district court sentenced him to ten years imprisonment, with two years fixed. Avelar appealed the conviction. The Court of Appeals reversed Avelar's conviction on the basis of prosecutorial misconduct and remanded the case to the district court for retrial (remittitur dated September 21, 1993).

On March 29, 1994, Avelar's second trial began. Avelar immediately moved to dismiss the case on the ground that the state's failure to retry him within six months of the issuance of the remittitur violated the statutory speedy trial rule, I.C. § 19-3501. The district court denied the motion, reasoning that the delay was not caused by prosecutorial misconduct or attempts to stall the proceedings. Instead, according to the district court, the delay was caused by court congestion, and the speedy trial rule does not require dismissal in such circumstances. The second jury found Avelar guilty, and the district court again sentenced him to ten years imprisonment, with two years fixed.

Avelar appealed his second conviction and sentence on four grounds, including the court's ruling on the speedy trial issue. The Court of Appeals, in State v. Avelar, 96.13 ICAR 597 (Ct.App.1996), affirmed the conviction and sentence. The Court of Appeals held that Idaho's statutory speedy trial rule, I.C. § 19-3501, does not apply to retrial following successful appeal, relying on the plain language of the statute and on State v. Scroggie, 114 Idaho 188, 755 P.2d 485 (Ct.App.1988). The court did not address Avelar's argument that such an interpretation would violate equal protection principles under the Idaho Constitution. Instead, it held that even assuming that the equal protection argument would bring Avelar within the bounds of the statute, there was still good cause shown for the delay. In doing so, the court applied the four-factor balancing test enunciated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether good cause existed for the delay pursuant to § 19-3501. The four factors under Barker consist of the length of the delay, the reasons for it, defendant's assertion of his right to a speedy trial, and the prejudice suffered by defendant. See State v. Cotant, 123 Idaho 787, 788, 852 P.2d 1384, 1385 (1993). Applying these factors, the Court of Appeals agreed with the district court's findings that

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the length of the delay was short (eight days), that the reason for it (court congestion) was neutral and not attributable to either party, and that Avelar had not demonstrated that the delay had prejudiced his case. The Court of Appeals concluded that the state had shown good cause under § 19-3501, and it affirmed the lower court's denial of Avelar's motion to dismiss.

Avelar appealed this decision to this Court. We granted review on the speedy trial issue only.

II.

DISCUSSION

In cases which call for this Court to review a Court of Appeals' decision, we give serious consideration to the views of the Court of Appeals. Spence v. Howell, 126 Idaho 763, 768, 890 P.2d 714, 719 (1995); Schiewe v. Farwell, 125 Idaho 46, 49, 867 P.2d 920, 923 (1993) (citing Matter of Hanson, 121 Idaho 507, 509, 826 P.2d 468, 470 (1992)). This Court, however, directly reviews the trial court's decision.

A. Idaho Code § 19-3501, Idaho's statutory speedy trial rule, does not apply to the instant case, a retrial following a successful appeal.

In this case, Avelar appears to have based his motion to dismiss on a violation of the statutory right to a speedy trial, § 19-3501, ¹ and the trial judge seemed to assume that I.C. § 19-3501 applied. In response to the motion, the trial court considered two of the Barker factors, reason for the delay and prejudice to the defendant, and ruled that: (1) the delay was caused by overcrowding of the court's calendar, and (2) the statute did not require dismissal under such circumstances. ²

The trial court erred in ruling that § 19-3501 applies to the instant case, a retrial following a successful appeal. Section 19-3501 provides:

The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:

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