State v. Brandt, Nos. 59122-59124

CourtUnited States State Supreme Court of Iowa
Writing for the CourtREYNOLDSON; All Justices concur except MASON; REES; MASON
Citation253 N.W.2d 253
Docket NumberNos. 59122-59124
Decision Date20 April 1977
PartiesSTATE of Iowa, Appellant, v. Doug BRANDT, Appellee.

Page 253

253 N.W.2d 253
STATE of Iowa, Appellant,
v.
Doug BRANDT, Appellee.
Nos. 59122-59124.
Supreme Court of Iowa.
April 20, 1977.

Page 254

Richard C. Turner, Atty. Gen., William F. Raisch, Asst. Atty. Gen., for appellant.

Francis Fitzgibbons and Harold W. White, Fitzgibbons, Brothers, Estherville, for appellee.

Considered en banc.

REYNOLDSON, Justice.

The magistrate sustained a motion to dismiss three related indictable misdemeanor charges on the ground the State had violated § 795.2, The Code, by not providing a speedy trial. The court also sustained a motion to "dismiss or quash" the informations on the ground a special assistant county attorney was appointed without strict compliance with § 336.3, The Code. We reverse and remand for trial.

Defendant, a purchasing agent for Estherville, was alleged to have purchased supplies from Mid Continent Laboratories, in return for which that company shipped to defendant's wife a General Electric dishwasher, a General Electric range and a General Electric trash compactor.

The county attorney asserted a conflict of interest because he represented defendant and members of his immediate family in certain civil matters. The district court

Page 255

appointed William F. Raisch, an assistant attorney general, as special assistant county attorney. The latter filed three county attorney informations, each based on acceptance of one of the above-alleged gifts on a different date, and each asserting a violation of § 741.1, The Code, 1973 (accepting gifts, bonuses or gratuities).

April 28, 1975, these informations were filed with the clerk of court. For an undisclosed reason the clerk did not comply with § 769.14 which required her, upon the filing of the informations, to issue arrest warrants for the accused. There is no inference her violation of this statute was in any way attributable to the prosecution or the special assistant county attorney.

Nor is there any question but that defendant and his counsel Mr. Francis Fitzgibbons were aware of this situation. Defendant's brief submitted to the magistrate stated, "In the present case, the Defendant and his attorneys were awaiting the next move of the State following the filing of the informations against him."

The record discloses after filing the informations Mr. Raisch returned to his duties with the attorney general's office in Des Moines. He assumed, to his subsequent dismay, defendant's arrest and arraignment would be handled by the local authorities. He conceded on oral argument this Emmet county prosecution was his first major assignment following his law school graduation.

Upon checking several weeks later to see how matters were progressing, Mr. Raisch discovered defendant had not been arrested or arraigned, nor had the arrest warrants been issued. He proceeded to Estherville on June 19, 1975. He requested Mr. Fitzgibbons to attend an arraignment that afternoon. This request was refused. Mr. Raisch then caused the warrants to be issued and placed in the hands of the sheriff.

There was uncontradicted evidence by affidavits which clearly indicated defendant promptly made himself scarce. When the deputy sheriff on June 19 went to the city garage to arrest defendant he was told defendant was in Omaha and would return the next day. The next day, Friday, June 20, he was told defendant had not returned from Omaha. Monday, June 23, he was informed defendant was on vacation. Neither defendant's wife, his son, his counsel nor his employer knew his whereabouts. A diligent search failed to produce defendant. Defendant's wife thought he might be in Las Vegas.

On June 24, 1975, the sheriff issued a nationwide item for the arrest of Harry Francis Brandt, also known as Doug Brandt. He called security guards in Las Vegas who knew defendant, without success. The Iowa Bureau of Criminal Investigation was brought in to no avail. Not until June 30, 1975, three days after the § 795.2 speedy trial time had expired, was defendant's arrest effected.

Meanwhile, an order was filed June 24, 1975 for defendant's arraignment on June 26, 1975. However, defendant had not been apprehended. Mr. Fitzgibbons, who had never appeared personally or by written appearance for defendant, did not receive a copy of this order. A subsequent order continued the proceedings until July 10, 1975.

July 8, 1975, Mr. Fitzgibbons first appeared for defendant by filing a motion to dismiss, alleging a violation of his speedy trial right under § 795.2, The Code. July 25, 1975, defendant filed a motion to "dismiss or quash" the informations based upon the alleged invalid appointment of a special assistant county attorney. A hearing was held July 28, 1975. The magistrate sustained both motions.

MOTIONS TO DISMISS FOR FAILURE TO PROVIDE SPEEDY TRIAL

I. There is no dispute defendant was not brought to trial within the § 795.2 60-day period, or that the burden is on the State to show good cause for delay. State v. Hines, 225 N.W.2d 156, 158 (Iowa 1975). It might be argued the inexplicable malfunction in the clerk's office which resulted in the warrants not issuing constitutes good cause. State v. LaPlant, 244 N.W.2d 240,

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242 (Iowa 1976) ("But good cause may be shown by the State without establishing fault on the part of defendant or his counsel").

But it is sufficient here to examine the period following issuance of the warrants. If acts or omissions of the defendant or his counsel contributed to the delay, McCandless v. District Court of Polk County, 245 Iowa 599, 606-607, 61 N.W.2d 674, 678 (1953), or if it is otherwise attributable to defendant, State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975), defendant's motion to dismiss should not have been sustained on § 795.2 grounds.

II. The gist of the magistrate's ground for sustaining the speedy trial dismissal motion is contained in the following language found in the ruling:

"Section 775.2 of the Code allows the defendant to appear at his arraignment by an attorney. Section 777.19 of the code provides that a defendant may be tried in his absence, again, if he appears by an attorney. The Court concludes that the absence of the Defendant as set forth in the Affidavits of the State and the inability of law enforcement officers to locate him does not preclude his arraignment and trial since the State's prosecuting attorney was aware that the Defendant had an attorney in Estherville available to appear on his behalf during the period from April 28, 1975, to June 27, 1975.

The Defendant's absence, however, in these misdemeanor proceedings does not have the result of prohibiting the arraignment or trial of the Defendant from being held when the State knows the identity of the Defendant's attorney. If Mr. Fitzgibbons had been notified of the June 24 Order, the burden would have been upon him to either appear for the Defendant or request additional time. He was not, however, so notified."

This ruling proceeds from a factual inference for which there is no support in the evidence. In other respects it misapplies the law.

III. First approaching the factual issue, it should be noted at the outset our review of trial court's determination is not de novo. State v. LaPlant, 244 N.W.2d 240, 242 (Iowa 1976); see State v. Albertsen, 228 N.W.2d 94 (Iowa 1975). Where the determination of the trial court is supported by substantial evidence in the record, we must affirm. State v. Reynolds,250 N.W.2d 434, 437 (Iowa 1977).

Here trial court found defense counsel was "available to appear for defendant at any scheduled proceedings." This finding is supported in the sense Mr. Fitzgibbons was physically present in the community and representing the interests of the defendant. But implicit in this finding is the concept Mr. Fitzgibbons was willing to appear in court for his client prior to his apprehension. There is no substantial evidence in this record to support that inference. The only evidence available is diametrically opposed.

The sole evidence offered by defendant on submission of the motion was defense counsel's affidavit. It asserts counsel had continuously been attorneys for defendant "in these criminal matters"; Mr. Raisch "was told by me that I and the law firm * * * would be representing " defendant; and in conversations with Raisch or Magistrate Arnold no statements were made that counsel or his firm "would not be representing " defendant. (Emphasis supplied).

Mr. Raisch, the assistant county attorney, on the witness stand being examined by Mr. Fitzgibbons, testified the magistrate had informed him by telephone "That the basis of his conversations with you (defense counsel) was that you would not represent you did not represent, formally represent Mr. Brandt until he had been formally arraigned or arrested."

The magistrate's recollection of his conversation with defense counsel, dictated into the record, is illuminating. Having been advised by Mr. Raisch that Mr. Fitzgibbons was defendant's lawyer, the magistrate placed a call to the latter on November 22, 1975, apparently to discuss the future

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proceedings. He recollected "Mr. Fitzgibbons advised me that Mr. Brandt had been in to see him about the matter some time ago, I gathered in May or something of that sort, and that at that point no retainer had been paid. He further advised me Mr. Brandt had not been arrested or had not been ordered in for arraignment." In a later telephone conversation with Raisch "I recited briefly the substance of my telephone call to Mr. Fitzgibbons." There is no intimation in the magistrate's colloquy that defense counsel was then purporting to represent defendant or that he had any authority or inclination to proceed with arraignment or trial or appear for defendant prior to defendant's arrest.

Neither the testimony of Mr. Raisch in this regard, nor the recollection of the magistrate, was ever controverted by defendant.

The record demonstrates beyond dispute counsel did not intend to appear for...

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19 practice notes
  • State v. O'Connell, No. 61172
    • United States
    • United States State Supreme Court of Iowa
    • February 21, 1979
    ...State v. Franulovich, 18 Wash.App. Page 201 290, 567 P.2d 264 (1977). It is also consistent with our observation in State v. Brandt, 253 N.W.2d 253, 255-56 (Iowa 1977), that the acts or omissions of defendant Or counsel can constitute good cause for delay beyond sixty days. If counsel can a......
  • State v. Dickerson, Nos. 66331
    • United States
    • United States State Supreme Court of Iowa
    • December 23, 1981
    ...hearing. Plea discussions were also being conducted during this period. Our standard of review is delineated in State v. Brandt, 253 N.W.2d 253, 256 (Iowa 1977). The good cause inquiry focuses on the reason for the delay. See State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). In the presen......
  • State v. Deases, No. 90-414
    • United States
    • Court of Appeals of Iowa
    • June 25, 1991
    ...court is supported by substantial evidence in the record. See State v. Dickerson, 313 N.W.2d 526, 528-29 (Iowa 1981); State v. Brandt, 253 N.W.2d 253, 256 (Iowa 1977). The trial court found good cause for the delay in filing the trial information against this It is not necessary that the de......
  • State v. Castillo-Alvarez, No. 9-324/08-0868 (Iowa App. 9/2/2009), No. 9-324/08-0868.
    • United States
    • Court of Appeals of Iowa
    • September 2, 2009
    ...for extradition to be granted. "Ordinarily the absence of defendant may constitute `good cause' for delay." State v. Brandt, 253 N.W.2d 253, 258 (Iowa 1977). Although the State, not the defendant, is obligated to bring a defendant to trial, delay caused by the defendant may consti......
  • Request a trial to view additional results
19 cases
  • State v. O'Connell, No. 61172
    • United States
    • United States State Supreme Court of Iowa
    • February 21, 1979
    ...State v. Franulovich, 18 Wash.App. Page 201 290, 567 P.2d 264 (1977). It is also consistent with our observation in State v. Brandt, 253 N.W.2d 253, 255-56 (Iowa 1977), that the acts or omissions of defendant Or counsel can constitute good cause for delay beyond sixty days. If counsel can a......
  • State v. Dickerson, Nos. 66331
    • United States
    • United States State Supreme Court of Iowa
    • December 23, 1981
    ...hearing. Plea discussions were also being conducted during this period. Our standard of review is delineated in State v. Brandt, 253 N.W.2d 253, 256 (Iowa 1977). The good cause inquiry focuses on the reason for the delay. See State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). In the presen......
  • State v. Deases, No. 90-414
    • United States
    • Court of Appeals of Iowa
    • June 25, 1991
    ...court is supported by substantial evidence in the record. See State v. Dickerson, 313 N.W.2d 526, 528-29 (Iowa 1981); State v. Brandt, 253 N.W.2d 253, 256 (Iowa 1977). The trial court found good cause for the delay in filing the trial information against this It is not necessary that the de......
  • State v. Castillo-Alvarez, No. 9-324/08-0868 (Iowa App. 9/2/2009), No. 9-324/08-0868.
    • United States
    • Court of Appeals of Iowa
    • September 2, 2009
    ...must be met for extradition to be granted. "Ordinarily the absence of defendant may constitute `good cause' for delay." State v. Brandt, 253 N.W.2d 253, 258 (Iowa 1977). Although the State, not the defendant, is obligated to bring a defendant to trial, delay caused by the defendant may cons......
  • Request a trial to view additional results

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