State v. Dreher
| Decision Date | 02 May 1986 |
| Docket Number | No. 58627,58627 |
| Citation | 717 P.2d 1053,239 Kan. 259 |
| Parties | STATE of Kansas, Appellant, v. Marion E. DREHER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The burden of bringing an accused to trial within the allotted time is on the State. A defendant is not required to take any affirmative action to see that his right is observed.
2. Delays which are caused by the application or fault of the defendant are not to be counted in computing the amount of time between arraignment and trial.
3. Any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of his fault should be limited to a reasonable time measured by the particular circumstances of the case.
Gene M. Olander, Dist. Atty., argued and Robert T. Stephan, Atty. Gen., and Arthur R. Weiss, Asst. Dist. Atty., were with him on brief, for appellant.
William K. Rork, Topeka, argued and was on brief, for appellee.
This is an appeal by the State from an order dismissing the charges against Marion E. Dreher for violation of the speedy trial statute.
The facts are not in dispute. Dreher was charged with driving under the influence of alcohol or drugs (K.S.A. 1985 Supp. 8-1567) and failure to give a signal when making a turn (K.S.A. 8-1548).
His first appearance and arraignment was October 11, 1984, at which time he requested a trial to the court. Trial was set for December 5, 1984, at 4:00 p.m. On that date, it was discovered that notices of the trial date had not been sent to counsel. Therefore the case was continued until February 1, 1985. Prior to the new trial date, the State requested and was granted a continuance for an additional twelve days, to February 12, 1985.
On February 4, 1985, Dreher filed a demand for jury trial. At the time, one hundred fifteen days had transpired after arraignment. A new trial date was set for April 29, 1985. The setting was two hundred days after Dreher's arraignment. Accordingly, on April 22, 1985, he filed a motion to dismiss the charges against him based upon violation of his statutory right to speedy trial. The trial judge denied Dreher's motion on April 29, 1985. Based upon this ruling, Dreher waived any claim of lack of speedy trial subsequent to April 29, 1985, and requested the case be continued for possible diversion. When it was discovered Dreher was not eligible for diversion due to a previous conviction for an alcohol-related offense, the case was again set for jury trial. Prior to commencement of the trial, Dreher renewed his motion to dismiss, alleging speedy trial violations. This time his motion was sustained. The State appeals the dismissal pursuant to K.S.A. 22-3602(b)(1).
The sole issue on appeal is whether the delay resulting from Dreher's demand for a jury trial caused the delay in the trial setting beyond the 180-day speedy trial provision, K.S.A. 22-3402(2).
The relevant portion of that statute provides:
"(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person 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)." (Emphasis added.)
The State places emphasis on the italicized portion of the statute and contends the delay in bringing Dreher to trial was a result of "the application or fault of the defendant." Specifically, the State argues the appellee's request for jury trial on February 4, 1985, necessitated a delay in trial until April 29, 1985, and the appellee was not entitled to dismissal of the charges for violation of the speedy trial statute.
The burden of bringing an accused to trial within the allotted time is on the State. A defendant is not required to take any affirmative action to see that his right is observed. However, in computing the amount of time between arraignment and trial, delays which are caused by the "application or fault" of the defendant are not to be counted. State v. Bean, 236 Kan. 389, 391-92, 691 P.2d 30 (1984).
Dreher admits a delay in the trial was a foreseeable consequence of his request for trial by jury. However, he points out that despite his...
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State v. Smallwood
...of a defendant's fault should be limited to a reasonable time measured by the particular circumstances of the case. State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986); State v. Bean, 236 Kan. at 393, 691 P.2d 30; State v. Sherman, 217 Kan. 326, 330, 536 P.2d 1373 Smallwood argues that......
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State v. Thomas, 98,123.
...time is on the State. A defendant is not required to take any affirmative action to see that his right is observed.” State v. Dreher, 239 Kan. 259, 260, 717 P.2d 1053 (1986). For example, in Vaughn the district court judge became ill, and absent an acquiescence by the defendant, the State w......
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State v. Queen
...The State has the burden of meeting the time requirement, and the defendant does not have to assert the right. State v. Dreher , 239 Kan. 259, 260, 717 P.2d 1053 (1986).If the State fails to bring the defendant to trial by the deadline, the defendant is "entitled to be discharged from furth......
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State v. Martinez, 71543
...his motion for continuance was unreasonable and charging the entire time to defendant would be manifestly unfair. In State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986), the Kansas Supreme Court held that "any additional period of time assessed against a defendant due to the necessity ......