State v. Davis

• Decision Date: 30 April 1980
• Docket Number: No. 51771,51771
• Citation: 382 So. 2d 1095
• Parties: STATE of Mississippi v. Henry Lee DAVIS and Mattie Davis.
• Court: Mississippi Supreme Court

Page 1095

382 So.2d 1095

STATE of Mississippi v.Henry Lee DAVIS and Mattie Davis.

No. 51771.

Supreme Court of Mississippi.

April 30, 1980.

Rehearing Denied May 28, 1980.

Charles W. Wright, Jr., Meridian, for appellant.

Roy Pitts, Meridian, for appellees.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

SMITH, Presiding Justice, for the Court.

Indictments were returned on May 4, 1978, against Henry Lee Davis and Mattie Davis charging them with felonious possession of marijuana with intent to deliver.They were arraigned in the Circuit Court of Lauderdale County on May 5, 1978, and entered pleas of not guilty.On April 10, 1979, 340 days after arraignment, the circuit court dismissed the charges upon the ground that the State had failed to bring the defendants to trial within 270 days after arraignment as required by Mississippi Code Annotated section 99-17-1(1972), which provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

The State of Mississippi has appealed as provided by Mississippi Code Annotated section 99-35-103(a)(1972).

There is no dispute as to facts shown by the record.

At the June, 1978 term, the first held after arraignment, on June 23, 1978, the case was continued generally to the August, 1978 term upon the application of the defendants.This involved a delay of 45 days.

On August 7, 1978, the first day of the August, 1978 term, both sides announced ready for trial and the case was set for trial on August 29, 1978.However, on August 29, 1978, the day set for trial, the defendants filed for the first time, (1)motions to suppress evidence, (2)demurrers to the indictments and (3)motions to quash the indictments.The motions to suppress were based upon alleged defects in the affidavits and search warrants and the motions to quash upon alleged racial discrimination in the selection of the foreman of the grand jury which returned the indictments.On that date, at the request of the State, the court entered an order continuing the cases"because of the overcrowded condition of the court docket".The record reflects that there was no objection by either defendant and no request for trial.

The October, 1978 term convened on October 2, 1978, at which time the delay attributable to the continuance was an added 34 days.

The only action relating to the cases at the October, 1978 term was that on October 25, 1978, both sides announced ready for trial and the cases were set for trial on November 10, 1978.The cases were not tried and the record is silent as to the reason.Again there was no protest or objection by defendants nor was there a request for trial.

On February 7, 1979, at the request of the State, an order was entered by the court continuing the cases until April 10, 1979.The order of continuance recited that this action was taken for the reason "that the toxicologist, a necessary witness in the prosecution in this case, is unavailable to testify at this time . . ."No protest or objection was made to the continuance by the defendants and there was no request by them for trial.

The defendants were represented by counsel and were at liberty on bail.

On April 10, 1979, the date set for trial, defendants moved to dismiss the charges because of the State's failure to bring them to trial within 270 days after their arraignment.The trial judge sustained the motions and discharged the defendants.In arriving at his conclusion, the trial judge allowed as a deduction from the total elapsed time of 340 days only the 45 day delay which resulted from the continuance of the case granted at the specific request of the defendants.He declined to deduct any delay resulting from continuances ordered by the court at the request of the State.

The trial judge erred in dismissing the indictments and discharging the defendants.

In reaching this conclusion, it is unnecessary to reach the question of whether or not a continuance, pursuant to an order entered by the trial court where there is no contemporaneous protest or objection whatever by a defendant, and no request for trial, carries with it a presumption of good cause.

The order entered by the court on August 29, 1978, must be considered, in the absence of any objection or protest thereto, because of the "overcrowded condition of the court docket" to have been for "good cause."The filing by the defendants of the demurrer and motions to quash on the eve of trial on this date, 81 days after arraignment, would have displaced the cases on the overcrowded trial docket of the court and made a new setting at the term difficult, if not impossible.This becomes evident when it is borne in mind that the motion to quash the indictment because of alleged racial discrimination in the selection of the foreman presented a factual issue, requiring an evidentiary hearing and was filed without notice on the day set for trial.The delay resulting from this continuance cannot be considered as having been without good cause, especially in the absence of any showing in the record to the contrary.In the complete absence...