State v. Fink
| Decision Date | 17 July 1975 |
| Docket Number | No. 47714,47714 |
| Citation | 538 P.2d 1390,217 Kan. 671 |
| Parties | STATE of Kansas, Appellant, v. Timothy Ray FINK, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The mere pendency of an indictment, information or complaint does not constitute jeopardy and the dismissal or nolle prosequi of a criminal charge entered prior to the arraingnment and trial of an accused is not a bar to a subsequent prosecution for the same offense.
2. It is a well-established rule that the legislature may, within reason, define what is meant by the constitutional guarantee to a speedy trial.
3. K.S.A. 22-2902 (Weeks) which requires that the preliminary examination shall be held within ten days after the arrest or personal appearance of the defendant is construed to be directory, and it does not require the dismissal of a subsequent charge and the discharge of the defendant, if a preliminary hearing is not provided within ten days.
4. Some of the factors which courts should assess in determining whether a defendant has been deprived of his right to a speedy trial include the length of the delay, the reason for the delay, the defendant's assertion of his right and prejudice to the defendant. (Following, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).)
5. In a criminal prosecution the trial court dismissed the charges filed and discharged the defendant for failure of the state to afford the defendant a speedy trial. On appeal the record is examined, and for the reasons stated in the opinion it is held: (a) a fourteen-month delay from arrest to appeal is not per se constitutionally infirm; (b) the state is not charged with delay occasioned by a determination of the accused's competency to stand trial; (c) a delay which does not exceed the time specified in a legislative enactment is not under the facts and circumstances prejudicial; and (d) the trial court erroneously dismissed the information and discharged the defendant.
Margaret W. Jordan, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., J. J. B. Wigglesworth and David W. Hughes, Asst. Dist. Attys., were with her on the brief for the appellant.
Jerald R. Long, of Long & Giffen, Mission, argued the cause and was on the brief for the appellee.
This is an appeal by the state from an order granting the defendant's motion for dismissal of an information charging aggravated arson (K.S.A. 21-3719 (Weeks)).
At issue are the constitutional and statutory guarantees of a right to speedy trial.
On April 9, 1973, apartment building 'L' of the Countryside Rentals, occupied by two females, was damaged by a fire set by some arsonist. On April 10, 1973, Timothy Fink (defendant-appellee) was arrested and charged by way of complaint with aggravated arson (K.S.A. 21-3719). That same day the defendant appeared before a magistrate who appointed counsel to represent him and set the preliminary hearing for April 17, 1973.
On April 17, 1973, the defendant appeared with his counsel and requested psychiatric services to assist in his defense pursuant to K.S.A. 22-4504 (Weeks). This motion was denied but the magistrate court, having reason to believe the defendant was incompetent to stand trial, suspended the proceedings and certified the case to the district court to determine the defendant's competency pursuant to K.S.A. 22-3302 (Weeks). The magistrate court stated a new preliminary hearing date would be set if the defendant was found competent and returned by the district court.
On April 18, 1973, the district judge appointed a medical commission consisting of two qualified physicians to examine the defendant. Although empowered to commit the defendant for 60 days for this examination, that did not occur. Instead, the defendant was released on bond the next day and at some point in time, which the record does not reflect, the defendant voluntarily committed himself at the Osawatomie State Hospital.
Two physicians examined the defendant on April 28, 1973, and filed their report on June 29, 1973.
At a July 11, 1973, hearing, based on the physicians' June 29, 1973, report and their letter dated July 6, 1973, the district court found the defendant was mentally competent to stand trial, and the case was remanded to the magistrate court for further proceedings. A letter reciting the district court's determination was sent to and filed by the clerk of the magistrate court on July 16, 1973, but a journal entry reflecting that determination was not filed until August 14, 1973.
On July 31, 1973, (fifteen days after the magistrate court clerk received the district court's determination) a motion was filed by the state seeking an order setting the case for preliminary hearing. The record does not reflect a ruling on this motion.
No action was taken until November 12, 1973, when the magistrate court issued a bench warrant to secure the defendant's appearance. On November 14, 1973, the defendant appeared before the magistrate court and the preliminary hearing was set for November 27, 1973.
On November 21, 1973, the defendant moved to dismiss with prejudice all charges. On November 27, 1973, the magistrate court dismissed the action stating that by virtue of K.S.A. 22-2902 (Weeks) the defendant had a right to a preliminary hearing within fifteen days of July 11, 1973, and that right had been denied. The court stated the dismissal was without prejudice.
On November 30, 1973, the charge against the defendant was refiled in the magistrate court, closely followed by the defendant's second motion for dismissal, alleging the denial of due process because of the state's failure to provide a speedy trial and because of the state's refiling of identical charges after the first was dismissed. That motion was denied and a preliminary hearing was held on December 19, 1973, (some 254 days after defendant's arrest). The magistrate court bound the defendant over to appear for arraignment in the district court on or before January 9, 1974.
The state filed an information in district court on December 26, 1973, and on January 9, 1974, the defendant filed notice of his insanity defense. On February 7, 1974, the defendant moved to dismiss the charges.
The record indicates this motion and the case languished in the district court until June 5, 1974, when the district court dismissed the information and discharged the defendant due to the totality of the delay and the invasion of the defendant's constitutional rights.
Throughout these proceedings the defendant has been at liberty on bond.
Pursuant to K.S.A. 22-3602(a) (Weeks) the state has perfected an appeal.
Both the Sixth Amendment to the United States Constitution and Section 10 to the Bill of Rights to the Kansas Constitution guarantee an accused the right to a speedy trial. This constitutional guarantee has been codified in various statutes. The United States Supreme Court has recently indicated approval of this practice by holding that the states 'are free to prescribe a reasonable period consistent with constitutional standards', Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972).
This court has similarly recognized legislative codification of speedy trial guarantees. In State v. Dolack, 216 Kan. 622, 533 P.2d 1282, the court held:
'. . . It is a well-established rule the Legislature may, within reason, define what is meant by the constitutional guarantee to a speedy trial, and has consistently done so. . . .' (p. 633, 533 P.2d p. 1291.)
After an arrest K.S.A. 22-2902 prescribes the time limitation for preliminary hearings as follows:
After the preliminary hearing, if the defendant is bound over to the district court K.S.A. 22-3206 (Weeks) controls. It reads in part:
'(1) A defendant charged with a felony in an information shall appear for arraignment upon such information in the district court not later than the next required day of court which occurs ten or more days after the order of the magistrate binding the defendant to appear in the district court for trial, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court.'
After arraignment a prompt trial must be held. K.S.A. 22-3402 (Weeks) provides the time limitations where, as here, the defendant is released on bond. It provides 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).'
With this statutory and constitutional framework in mind the state contends the court erred in dismissing the information because there was no showing of prejudice to the defendant, and time was within the 180 days of arraignment guaranteed by K.S.A. 22-3402(2).
The defendant focuses on the totality of time involved in this case and contends the court did not err in dismissing the information because the totality of delay in this matter is such that constitutional rights have been invaded.
The defendant further contends the November 27, 1973, order dismissing the complaint was a final order barring further prosecution under K.S.A. 21-3108 (Weeks), which provides:
'(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
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