State v. Davis

• Decision Date: 08 April 1972
• Docket Number: No. 46551,46551
• Citation: 495 P.2d 965,209 Kan. 225
• Parties: STATE of Kansas, Appellee, v. Ronald E. DAVIS, Appellant.
• Court: Kansas Supreme Court

Page 965

495 P.2d 965

209 Kan. 225

STATE of Kansas, Appellee, v. Ronald E. DAVIS, Appellant.

No. 46551.

Supreme Court of Kansas.

April 8, 1972.

Rehearing Denied May 10, 1972.

Syllabus by the Court

1. The Kansas Code of Criminal Procedure, effective July 1, 1970, was intended to provide for the just determination of every criminal proceeding, and is to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (K.S.A.1971 Supp. 22-2103.) The Code also contains a new definition of the term 'speedy trial' as contemplated by Section 10 of the Bill of Rights of the Constitution of Kansas.

2. K.S.A.1971 Supp. 22-4602(1) clearly establishes the expressed intention of the Legislature that the Code of Criminal Procedure was to govern prosecution commenced prior to the effective date of the Code unless the accused elects to be prosecuted under the prior law, in force at the time the prosecution was commenced.

3. A defendant charged before the effective date of the Code of Criminal Procedure may be entitled to the benefits of a speedy trial within 180 days, as provided in K.S.A.1971 Supp. 22-3402(2).

4. The state may be permitted one continuance of not more than thirty days upon the ground that the state of the criminal docket does not permit commencement of the trial within the 180 days as provided in K.S.A.1971 Supp. 22-3402(3)(d).

5. The state may be permitted one continuance of not more than ninety days, unless for good cause shown, as provided in K.S.A.1971 Supp. 22-3402(3)(c), upon the ground that evidence material to its case is unavailable and after a proper showing by the state of due diligence on its part to secure such evidence.

6. The record in a criminal case is examined, and, as more fully set forth in the opinion, it is held: Under the facts and circumstances, the district court did not err in granting the state continuances under K.S.A.1971 Supp. 23-3402(3)(c) and (d), and the accused was not denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, or Section 10 of the Bill of Rights of the Kansas Constitution.

James W. Dahl, Kansas City, argued the cause and was on the brief for appellant.

Mark L. Bennett, Jr., Asst. County Atty., argued the cause and Vern Miller, Atty. Gen., and James A. Wheeler, County Atty., were with him on the brief for appellee.

FATZER, Chief Justice:

On September 25, 1970, the appellant was convicted by a jury on three counts of grand larceny. He has appealed, alleging he was denied his constitutional right to a speedy trial as rpovided by the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution, and that the district court erred in overruling his motion for discharge pursuant to K.S.A.1971 Supp. 22-3402(2). The facts are not in dispute, and a summary of those necessary for a just determination of the case follows.

On October 30, 1968, an Information was filed by the state of Kansas charging the appellant with three counts of grand larceny. On January 6, 1969, he failed to appear at the call of the criminal docket of the Johnson district court; his bond was forfeited, and a bench warrant was issued. Subsequently, he was taken into custody and arraigned by the district court on February 24, 1970. He was again released on bail.

The appellant's case was set for trial on August 20, 1970, along with several other cases. One of the cases set ahead of the appellant's case went to trial and as a result the appellant's case was 'bumped' from the docket, and continued by the court for trial on August 24, 1970.

On August 24, 1970, 181 days after his arraignment, the case was called to trial by the district court at which time the appellant made a motion for discharge pursuant to K.S.A.1977 Supp. 22-3402(2), contending he had not been afforded a trial within 180 days following his arraignment. The state moved that the trial be continued until September 17, 1970, alleging that three witnesses were unavailable; that it was experiencing difficulties in rearranging for the attendance of those witnesses-one witness was outside the state and two witnesses were incarcerated in penal institutions. Both motions were taken under advisement by the district court, and on September 8, 1970, it overruled appellant's motion and continued the case for trial to September 24, 1970. The appellant's appearance bond was continued in effect.

The case proceeded to trial on September 24, 1970, and on September 25, 1970, the jury returned a verdict finding the appellant guilty as charged on all three counts of grand larceny. Subsequently, a motion for new trial or arrest of judgment was overruled by the district court.

In 1970, the Legislature enacted the new Code of Criminal Procedure, which became effective on July 1, 1970. The new act was intended to provide for the just determination of every criminal proceeding, and is to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (K.S.A.1971 Supp. 22-2103.) Section 22-3402 contains a new definition of the term 'speedy trial,' as used in Section 10 of the Bill of Rights of the Kansas Constitution. The purpose of the statute is to implement the constitutional guarantee of speedy trial. The new definition shortened the limitations for trial and are expressed in days after arraignment, rather than court terms after the filing of the indictment or information. The new statute, K.S.A.1971 Supp. 22-3402 reads in part:

'(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, he shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).

'(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:

* * *

* * *

'(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety days, and the trial is commenced within one hundred twenty days from the original trial date;

'(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty days may be ordered upon this ground.'

The appellant argues that he timely asserted his right to a speedy trial by moving for discharge on August 24, 1970, as he had not been brought to trial within 180 days as provided by 22-3402(2). As indicated, the trial setting on August 24, 1970, was 181 days after the appellant's arraignment on February 24, 1970. In addition, he contends that if the district court properly continued his trial from August 24, 1970, to September 24, 1970, that such a continuance was more than authorized by 22-3402(3)(d), as it was 31 days rather than 30 days.

It is clear from the language of K.S.A.1971 Supp. 22-4602(1) that the Legislature intended to give the accused the election to proceed under the repealed Code, or the newly enacted Code of Criminal Procedure. That section reads:

'(1) The trial of any prosecution commenced prior to the effective date of this chapter, and proceedings incidental thereto, shall be governed by this chapter unless the defendant elects to be proceeded against under the law in force at the time the prosecution was commenced. ...