State v. Johnson, No. 56403

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard by MOORE; REES
Citation217 N.W.2d 609
PartiesSTATE of Iowa, Appellee, v. Irvin JOHNSON, Appellant.
Docket NumberNo. 56403
Decision Date24 April 1974

Page 609

217 N.W.2d 609
STATE of Iowa, Appellee,
v.
Irvin JOHNSON, Appellant.
No. 56403.
Supreme Court of Iowa.
April 24, 1974.

Page 610

R. Fred Dumbaugh and Guy P. Booth, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Stephen T. Moore, Asst. Atty. Gen., and David J. Dutton, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

REES, Justice.

This is an appeal by Irvin Johnson from conviction of the crime of carrying a concealed weapon in violation of section 695.2, The Code, 1971, and a sentence to imprisonment in the state penitentiary at Fort Madison for a term not to exceed five years, to be served consecutively with sentences arising out of convictions on companion charges. Defendant asserts that trial court erred in proceeding to trial in this action after prior dismissal of an identical charge alleging the same offense, said dismissal having been predicated upon violation of defendant's constitutional rights to a speedy trial, as embodied in section 795.2, The Code. We agree with defendant's assignment of error, reverse defendant's conviction, vacate the sentence, and remand for dismissal of this charge.

Defendant was arrested on December 7, 1971 and by county attorney's information filed December 8, 1971 charged with the crime of carrying a concealed weapon in violation of section 695.2, The Code. He initially demurred to the information but later entered a plea of not guilty, along with a formal demand for a speedy trial. On February 22, 1972 defendant moved to dismiss for failure to provide a speedy trial pursuant to section 795.2. Dismissal of the charge was ordered on May 15, 1972, although not based upon or in response to defendant's 795.2 motion.

The same case was reinstated on May 24, 1972. Defendant again pleaded not guilty and demanded a speedy trial. On June 5, 1972 a second motion to dismiss for failure to provide speedy trial within the statutory 60-day limit was filed, and upon subsequent hearing before the court, was sustained. Thus, the case was dismissed on October 6, 1972, pursuant to the provisions of section 795.2, The Code.

Page 611

On October 18, 1972 the county attorney filed a new information under a new docket number, again charging defendant with the crime of carrying a concealed weapon in violation of section 695.2 arising out of the same set of facts as the earlier charges. Defendant entered a plea of not guilty, and demanded a speedy trial. He later moved to dismiss claiming former acquittal, but the court refused to dismiss the charge on that basis, and proceeded with trial on December 11, 1972.

A renewed motion to dismiss dictated into the record by defendant's counsel at the close of all evidence was overruled by the court, despite the State's stipulation during trial that 'this cause was previously dismissed by the court and subsequently refiled by True Information approved by (the) Court. * * *

The jury returned a verdict of guilty on the charge and defendant was sentenced by the court as stated above.

Defendant presents a compound assignment of error, revolving around the effect of a dismissal pursuant to section 795.2, The Code, and the applicability of the reinstatement provisions of section 795.5, The Code, to dismissals under section 795.2. Although this court has previously had occasion to discuss these issues in relation to failure to provide a speedy indictment, per § 795.1, State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906, recent developments in this court and other judicial realms necessitate a reconsideration of our position on these questions.

1. Upon review of the record in the case at bar, we find defendant has properly preserved his assigned questions for presentation to this court. He repeatedly made his demands for speedy trial in timely...

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32 practice notes
  • State v. Moritz, No. 62991
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 1980
    ...violated his right to a speedy trial under section 795.2 of the 1977 Code as this court construed the section in State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974). Section 795.2 provides in If a defendant indicted for a public offense, whose trial has not been postponed upon his application......
  • State v. Williams, No. 14-0793
    • United States
    • United States State Supreme Court of Iowa
    • May 25, 2017
    ...art. I, § 10 ; see State v. Gebhart , 257 Iowa 843, 847, 134 N.W.2d 906, 908 (1965), overruled on other grounds by State v. Johnson , 217 N.W.2d 609, 612 (Iowa 1974), and State v. Gorham , 206 N.W.2d 908, 913 (Iowa 1973). It has been part of the criminal procedure of this state since 1851. ......
  • State v. Webb, No. 65028
    • United States
    • United States State Supreme Court of Iowa
    • August 26, 1981
    ...of guilt." State v. Bige, 195 Iowa 1342, 1348, 193 N.W. 17, 20 (1923), partially overruled on other grounds, State v. Johnson, 217 N.W.2d 609, 612 (Iowa III. Refusal to compel disclosure of the identity of a confidential informant. Defendant contends that the trial court erred in overruling......
  • State v. Hines, No. 56726
    • United States
    • United States State Supreme Court of Iowa
    • January 22, 1975
    ...the same or a related offense.'); State v. Falter, 6 Wash.App. 665, 666, 495 P.2d 694, 695 (1972); compare with State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974) ('Application of the reprosecution language of section 795.5 to any dismissal under section 795.2 would drain that statutory enac......
  • Request a trial to view additional results
32 cases
  • State v. Moritz, No. 62991
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 1980
    ...violated his right to a speedy trial under section 795.2 of the 1977 Code as this court construed the section in State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974). Section 795.2 provides in If a defendant indicted for a public offense, whose trial has not been postponed upon his application......
  • State v. Williams, No. 14-0793
    • United States
    • United States State Supreme Court of Iowa
    • May 25, 2017
    ...art. I, § 10 ; see State v. Gebhart , 257 Iowa 843, 847, 134 N.W.2d 906, 908 (1965), overruled on other grounds by State v. Johnson , 217 N.W.2d 609, 612 (Iowa 1974), and State v. Gorham , 206 N.W.2d 908, 913 (Iowa 1973). It has been part of the criminal procedure of this state since 1851. ......
  • State v. Webb, No. 65028
    • United States
    • United States State Supreme Court of Iowa
    • August 26, 1981
    ...of guilt." State v. Bige, 195 Iowa 1342, 1348, 193 N.W. 17, 20 (1923), partially overruled on other grounds, State v. Johnson, 217 N.W.2d 609, 612 (Iowa III. Refusal to compel disclosure of the identity of a confidential informant. Defendant contends that the trial court erred in overruling......
  • State v. Hines, No. 56726
    • United States
    • United States State Supreme Court of Iowa
    • January 22, 1975
    ...the same or a related offense.'); State v. Falter, 6 Wash.App. 665, 666, 495 P.2d 694, 695 (1972); compare with State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974) ('Application of the reprosecution language of section 795.5 to any dismissal under section 795.2 would drain that statutory enac......
  • Request a trial to view additional results

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