State v. Johnson

• Decision Date: 24 April 1974
• Docket Number: No. 56403,56403
• Parties: STATE of Iowa, Appellee, v. Irvin JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 609

217 N.W.2d 609

STATE of Iowa, Appellee, v. Irvin JOHNSON, Appellant.

No. 56403.

Supreme Court of Iowa.

April 24, 1974.

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.

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 fashion, consistent with Pre-Gorham standards (State v. Gorham, 206 N.W.2d 908 (Iowa 1973)). The second dismissal, on October 6, 1972 was explicitly stated by trial court to be based on section 795.2, The Code, in response to defendant's motion to dismiss for failure to provide a speedy trial. In view of the filing of the identical charge on October 18, 1972 and defendant's subsequent conviction and sentence thereunder, the issue is properly framed as to the effect of that dismissal and the propriety of the refiling.

II. In State v. Gorham, Supra, we upheld the viability of section 795.2 as a statutory enactment, given the construction therein imposed as to the modification of the demand-waiver rule in relation to a defendant's right to speedy trial. We also indicated an approval of the rationale of Baker v. Wingo, 407 U.S. 514 at 522, 92 S.Ct. 2182 at 2188, 33 L.Ed.2d 101 (1972) and ABA Standards Relating to Speedy Trial, § 4.1 and commentary at 40--41 (Approved Draft, 1968). The United States Supreme Court, in Barker v. Wingo, Supra, alluded to the remedy of dismissal for denial of a speedy trial, stating at 522 of 407 U.S., 2188 of 92 S.Ct.:

'The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but It is the only possible remedy.' (Emphasis added).

See also State v. Bowers, 162 N.W.2d 484, 487 (Iowa 1968).

We also indicated a reliance upon the ABA Standards Relating to Speedy Trial, § 4.1 (Approved Draft, 1968):

'4.1 Absolute discharge.

'If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the consequence should be absolute discharge. Such discharge should forever bar prosecution for the offense charged and for any other offense required to be joined with that offense. * * *'

We are persuaded that the reasoning behind such a principle is sound. As stated in Strunk v. United States, 412 U.S. 434, 438, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973):

'By definition * * * (denial of the right to speedy trial) is unlike some of the other guarantees of the Sixth Amendment. For example, failure to afford a public trial, an impartial jury, notice of charges, or compulsory service can ordinarily be cured by providing those guaranteed rights in a new trial. The speedy trial guarantee recognizes that a prolonged delay may subject the accused to an emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving--uncertainties that a prompt trial removes. Smith v. Hooey, 393 U.S. 374, at 379, 89 S.Ct. 575, at 577, 578, 21 L.Ed.2d 607; United States v....