State v. Jamison, 64439

• Decision Date: 01 March 1991
• Docket Number: No. 64439,64439
• Citation: 248 Kan. 302,806 P.2d 972
• Parties: STATE of Kansas, Appellant, v. Howard D. JAMISON, Appellee.
• Court: Kansas Supreme Court

Page 972

806 P.2d 972

248 Kan. 302

STATE of Kansas, Appellant, v. Howard D. JAMISON, Appellee.

No. 64439.

Supreme Court of Kansas.

March 1, 1991.

Syllabus by the Court

1. K.S.A. 22-3402 governs the period of time for a speedy trial. A defendant not in custody is entitled to discharge if he is not brought to trial within 180 days of arraignment. The statutory time period for a speedy trial commences on the date of arraignment. Delays which are the result of the application or the fault of the defendant are not counted in computing the statutory period.

2. The State cannot avoid the time limitations of K.S.A. 22-3402 by dismissing an action and then refiling the identical charges against the same defendant, absent a showing of necessity. The time charged to the State in the first action is added to the time charged in the second action if the State fails to make a showing of necessity. However, if the first case is dismissed with a showing of necessity computation of the statutory period commences anew upon the arraignment in the refiled second case.

3. Under the facts of this case, the dismissal of the original unverified complaint and the refiling thereof with verification were shown to be necessary.

4. The validity of a claim of unconstitutional denial of a speedy trial is measured by four factors: the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant.

Debra Byrd Wagner, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Nola Foulston, Dist. Atty., were with her on the brief, for appellant.

Frank J. Kamas of Render, Kamas & Hammond, Wichita, argued the cause and was on the brief, for appellee.

HERD, Justice:

This is a direct appeal by the State pursuant to K.S.A. 22-3602(b)(1) from an order of the district court dismissing an information and complaint filed against Howard D. Jamison for violation of his constitutional and statutory rights to a speedy trial.

The facts are not in dispute. On April 1, 1987, Jamison was arrested and issued an unverified traffic citation charging him with driving while under the influence of intoxicating liquor or drugs, K.S.A.1987 Supp. 8-1567(a)(1); driving while privileges suspended, canceled, or revoked, K.S.A.1987 Supp. 8-262; failure to have all tail lamps operable, K.S.A. 8-1706; and speeding, K.S.A. 8-1336. Jamison was released after posting bond. The next day, April 2, Jamison's attorney made his first entry of appearance and Jamison pled not guilty to the charges. A bench trial was set for May 27.

On May 22, Jamison entered a demand for jury trial, and the case was scheduled for hearing June 22. Subsequently, the case was twice continued at the court's request until August 12. On August 12, 1987, the State voluntarily dismissed the charges against Jamison based upon the Court of Appeals' ruling in State v. Fraker, 12 Kan.App.2d 259, 739 P.2d 940 (1987). In Fraker, the Court of Appeals ruled that the State's failure to file a verified complaint or information charging a defendant with driving while under the influence of drugs or alcohol, K.S.A. 8-1567, violated the mandates of K.S.A. 8-2106. Thus, the court determined the district court lacked jurisdiction over the offense and the defendant's conviction was vacated. 12 Kan.App.2d at 261, 739 P.2d 940.

Ten months later, on June 21, 1988, the State refiled a verified complaint against Jamison charging him with the identical offenses alleged in the first case. The same day a summons and complaint were issued for Jamison's appearance on July 13, but were returned with a note that he no longer resided at the address stated. Subsequently, Jamison failed to appear on July 13 and a bench warrant was issued for his arrest. He was arrested nearly a year later on August 18, 1989.

On August 21, 1989, Jamison was arraigned and entered a plea of not guilty; trial was set for September 8. On September 7, Jamison was granted a continuance until October 13.

Prior to trial, Jamison entered an oral motion to dismiss for lack of speedy trial. He argued his constitutional and statutory rights to a speedy trial had been violated. The district court determined the statutory time limit of K.S.A. 22-3402(2) had run and dismissed the charges. This appeal by the State followed.

The State first contends the district court erred in dismissing the charges against Jamison for failure to provide a speedy trial. The State argues the dismissal on August 12, 1987, was necessary and, therefore, the time for a speedy trial did not begin to run until Jamison's second arraignment on August 21, 1989.

In this instance, K.S.A. 22-3402(2) governs the period of time for a speedy trial. The statute provides:

"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)."

The purpose of K.S.A. 22-3402(2) is to implement and define the constitutional guarantee of a speedy trial and the maximum time limits within which a defendant must be brought to trial. State v. McQuillen, 236 Kan. 161, 163, 689 P.2d 822 (1984).

The rules for computing the time for a speedy trial are well established. The statutory time period for a speedy trial commences on the date of arraignment. City of Derby v. Lackey, 243 Kan. 744, 745, 763 P.2d 614 (1988). Delays which are the result of the application or the fault of the defendant are not counted in computing the statutory period. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). In addition, the State cannot avoid the time limitations of K.S.A. 22-3402(2) by dismissing an action and then refiling the identical charges against the same defendant, absent a showing of necessity. State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). Thus, under the rule of Cuezze, the time charged to the State in the first action is added to the time charged in the second action if the State fails to make a showing of necessity. However, if the first case is dismissed with a showing of necessity, computation of the statutory period commences anew upon arraignment in the refiled second case. State v. Ransom, 234 Kan. 322, 325, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818, 105 S.Ct. 88, 83 L.Ed.2d 34 (1984).

Thus, the issue we must consider is whether the State made a showing of necessity at the time of dismissal. The State argues the Court of Appeals' holding in State v. Fraker, 12 Kan.App.2d 259, 739 P.2d 940, required dismissal because the district court no longer had jurisdiction over the unverified intoxicated driving and suspended licenses charges, K.S.A. 8-1567 and 8-262. Jamison asserts the State unnecessarily dismissed the charges because it could have sought a continuance pending the review of Fraker by this court, or, in the alternative, the State could have cured the error by amending the complaint within the 180-day time period.

In Cuezze, the State dismissed conspiracy charges against the defendants in order to investigate and obtain information sufficient to charge a third conspirator. We found the State's failure to seek a continuance under K.S.A. 22-3402(3)(c) was fatal to its claim of necessity. 225 Kan. at 275-79, 589 P.2d 626. The same conclusion was reached in State v. Hunt, 8 Kan.App.2d 162, 166-67, 651 P.2d 967 (1982), wherein the State voluntarily dismissed an action against the defendant because a witness could not be located.

In contrast, in State v. Ransom, 234 Kan. at 325-27, 673 P.2d 1101, we found the State succeeded in showing necessity for dismissal where the district court denied a request for continuance by the State due to difficulty in obtaining the presence of principal subpoenaed witnesses at the trial date. In State v. Haislip, 234 Kan. 329, 335, 673 P.2d 1094 (1983), we held that a request for continuance was not required to establish necessity where such request would not accomplish the desired goal of trying two defendants together.

State v. Fraker, 12 Kan.App.2d 259, 739 P.2d 940, filed July 9, 1987, held that the State's failure to file a verified complaint or information charging the defendant with violation of K.S.A.1985 Supp. 8-1567 (driving while under the influence of drugs or alcohol) violated K.S.A 1985 Supp. 8-2106, and, therefore, rendered the district court without jurisdiction over the offense. 12 Kan.App.2d at 261, 739 P.2d 940. Upon petition for review, we concurred in the Court of Appeals' determination that the DUI action was not properly commenced without a verified complaint. State v. Fraker, 242 Kan. 466, 467, 748 P.2d 868 (1988). This court, however, modified the earlier ruling by holding that the nonverification defect is not jurisdictional and may be waived where the defendant proceeds to trial without objecting to the defect. 242 Kan. at 468, 748 P.2d 868.

The Court of Appeals decision in Fraker was filed on July 9, 1987. This case was pending at that time. The State recognized that its unverified complaint against Jamison was defective under Fraker, leaving the district court without jurisdiction. Our decision reversing the Court of Appeals' holding on jurisdiction in unverified complaint cases was not filed until January 15, 1988. Jamison's statutory speedy trial timeclock under the first complaint would have expired at the latest on November 7, 1987. Thus, the State was on the horns of a dilemma. If the district court lacked jurisdiction it could not grant the State the needed permission (K.S.A. 22-3201 to amend its complaint. From its perspective on August 21, 1987, relying on the Court of Appeals' Fraker opinion, the district court clearly did not have...