State v. Cross
| Decision Date | 10 January 1991 |
| Docket Number | No. 17147,17147 |
| Citation | 468 N.W.2d 419 |
| Parties | STATE of South Dakota, Plaintiff/Appellee, v. Robert E. CROSS, Defendant/Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Roger A. Tellinghuisen, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff/appellee.
Jana Miner Lunsford of Johnson, Eklund & Abourezk, Gregory, for defendant/appellant.
Robert Eugene Cross (Cross), following a trial to the court, was convicted of first degree rape. SDCL 22-22-1(4). On appeal Cross argues that the trial court erred by tolling the time period of his escape from custody from the operation of SDCL 23A-44-5.1 (the 180-day rule) since the state did not file its motion for good cause delay within 180 days of Cross' initial appearance. We affirm.
Cross was arrested on September 3, 1988, and made his initial appearance on September 6, 1988. The 180th day from his initial appearance was March 5, 1989. Cross, however, escaped from Winner's city jail on October 17, 1988. Between this date and March 5, 1989, the 180th day, state did not make any motion to toll the 180 day provision of SDCL 23A-44-5.1.
Cross was arrested in North Carolina on October 31, 1989, and returned to South Dakota's jurisdiction on December 7, 1989. On January 31, 1990, state made a motion to toll the 416 day period from the date of Cross' escape to the date of his return to South Dakota's jurisdiction. Cross did not file a motion to dismiss due to the expiration of 180 days.
On February 16, 1990, the trial court entered findings of fact and conclusions of law granting state's motion. The court concluded that Cross had been a fugitive for 416 days and tolled that time period.
Cross was tried on March 5, 1990. Judgment of conviction was filed on March 29, 1990.
Whether the trial court erred in using Cross' escape to toll SDCL 23A-44-5.1 when state failed to file a motion for good cause delay prior to the expiration of the 180 day period?
SDCL 23A-44-5.1 provides:
The prosecution shall dispose of all criminal cases by plea of guilty or nolo contendere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed.
In State v. Hoffman, 409 N.W.2d 373, 375 (S.D.1987), this court observed:
We believe SDCL 23A-44-5.1 is clear and unambiguous on its face. It requires a disposition of criminal matters within 180 days lacking good cause for delay.
* * * * * *
We hold that once a defendant has established the running of the 180-day time period he has established a prima facie case for dismissal.
* * * * * *
The 180-day period may be tolled if State moves for and can show good cause for delay. To foster certainty and finality, we hold that a motion for a good cause delay must be filed prior to the expiration of the 180-day period. We recognize, however, that SDCL 23A-44-5.1 does not on its face require State to file a motion for good cause delay prior to the expiration of the 180-day period.
Because state failed to file a motion for good cause delay during the 180-day period, Cross argues that this case must be dismissed.
Hoffman, supra, however, is not applicable in all situations. In State v. Tiedeman, 433 N.W.2d 237 (S.D.1988), state failed to file a motion for good cause delay. Because Hoffman did not address a case where a dismissal and subsequent refiling of criminal charges delays the advancement of the case to trial, this court found Hoffman distinguishable and not controlling. Hoffman also did not address the question of delay caused solely by a defendant's escape.
In other states the rule under speedy trial statutes is that where the defendant is a fugitive from justice and delay beyond the statutory period is thereby occasioned, the defendant may not take advantage of the delay he is responsible for and is not entitled to discharge for failure to accord him a speedy trial. Annotation, Waiver or Loss of Accused's Right to Speedy Trial, 57 A.L.R.2d 302 (1958); 21A Am.Jur.2d, Criminal Law Sec. 861 (1981).
In Tiedeman, supra, this court sought guidance from Pennsylvania case law in making its determination. In cases where delay is caused by a defendant's escape and fugutive status Pennsylvania follows the general rule set forth above. Com. v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984). In Fisher, the court noted that delay is a defendant's best lawyer; where a defendant assents to a period of delay and later attempts to take advantage of it, courts should be loath to find a violation of an accused's speedy trial rights.
Rule 1100 [the 180-day rule] "serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society," Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297 297 A.2d 127 (1972). In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
....
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.
Com. v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).
This case is not a case of delay caused by docket congestion or ineffective scheduling practices. Hoffman, supra; State v. Ven Osdel, 462 N.W.2d 890 (S.D.1990). This is a case where the delay was solely attributable to Cross' escape and status as a fugitive for well over one year. SDCL 23A-44-5.1 was not enacted to reward this type of conduct. In accordance with Tiedeman, supra, the trial court correctly tolled the time period between Cross' escape and return to South Dakota's jurisdiction.
The judgment is affirmed.
AMUNDSON, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.
I concur in the majority opinion and agree with many of the comments in Justice Henderson's special writing.
Willingly and proudly I served under the Fosheim Court *. As I write this special writing, the "old 180-day rule" will be supplanted with a new look. This "new 180-day rule" was lifted, by and large, from our legal brothers in the State of Nebraska where it has served them well. There is a great deal of settled law, in Nebraska, under the "new 180-day rule."
With the advent of this "new 180-day rule," on the horizon in this state, I wish to join this opinion; however, I do so with reservations. First of all, I concurred in result in Tiedeman due to one principal reason, namely that the charges which Tiedeman first faced were not the charges upon which he was ultimately convicted. However, I did not think the State clearly substantiated their cause for the delay in prosecution of that case.
In Ven Osdel, this special writer wrote the majority opinion, which was joined by Justices Wuest and Morgan, both of whom served on the Fosheim Court. Justice Sabers and Chief Justice Miller both dissented in Ven Osdel. The Court...
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