State v. Kimball, No. 55291

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard before MOORE; UHLENHOPP
Citation203 N.W.2d 296
Decision Date20 December 1972
Docket NumberNo. 55291
PartiesSTATE of Iowa, Appellee, v. James B. KIMBALL, Appellant.

Page 296

203 N.W.2d 296
STATE of Iowa, Appellee,
v.
James B. KIMBALL, Appellant.
No. 55291.
Supreme Court of Iowa.
Dec. 20, 1972.

Page 297

Whitesell Law Firm and Larry A. High, Iowa Falls, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., and Clark E. McNeal, Hardin County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

UHLENHOPP, Justice.

The principal question in this case relates to defendant's right to speedy trial.

Page 298

The chronology of events is pertinent. In 1969 defendant James B. Kimball was convicted of falsely uttering a check. He appealed and this court reversed the judgment and ordered a new trial. State v. Kimball, 176 N.W.2d 864 (Iowa). On June 8, 1970, this court issued procedendo directing the district court to proceed with the cause. Attorney Don J. Wilson represented defendant continuously throughout those proceedings and until October 19, 1970. Defendant was in a federal penitentiary in Kansas when procedendo issued, having been convicted of a federal offense.

On October 14, 1970, the district court assigned the second trial for October 27, 1970. On October 19, 1970, Mr. Wilson filed a 'disclaimer' (withdrawal?) and a letter from defendant in which defendant asked for the date of trial and stated he was indigent. On the same day the clerk of district court mailed notice of the trial date to defendant. On October 26, 1970, the district court reappointed Mr. Wilson as defendant's attorney and the next day reassigned the trial for November 30, 1970.

On November 23, 1970, Mr. Wilson moved for a continuance, and trial did not begin on November 30th. On January 25, 1971, the district court reassigned the trial for March 16, 1971. On the latter date the case was called for trial. Neither Mr. Wilson nor defendant appeared, so trial could not go forward. The State unsuccessfully attempted by various proceedings to forfeit defendant's bail, but those proceedings are not controlling on the problems before us.

On April 28, 1971, by mail, defendant himself filed a motion to dismiss the case, based on the speedy trial clause of the Sixth Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. Apparently this motion was not called to the court's attention at the time.

On June 28, 1971, the district court reassigned the trial for September 21, 1971, again reappointed Mr. Wilson as defendant's attorney, and issued a writ of habeas corpus prosequendum for the production of defendant at trial.

On August 4, 1971, the district court overruled defendant's motion to dismiss which was filed April 28, 1971, having been requested by letter from defendant to rule on it.

On August 17, 1971, Mr. Wilson applied to withdraw as defendant's attorney, and by letter defendant consented to the withdrawal. On August 31, 1971, the district court permitted Mr. Wilson to withdraw and appointed Whitesell Law Firm as defendant's attorneys, and that firm has since represented him. On September 13, 1971, the district court authorized defendant's attorneys to interview defendant in Kansas.

On September 15, 1971, defendant filed a motion asking, among other things, that the case be dismissed because defendant was not retried within 60 days as required by § 795.2 of the Code of 1971 and because he was not speedily tried as required by the Sixth Amendment to the United States Constitution made applicable by the Fourteenth Amendment. On September 21, 1971, the motion was overruled.

Prior to trial, defendant was brought to Iowa by a deputy United States marshal, and while in Iowa he was in the deputy marshal's custody pursuant to federal regulations. During the nights of the trial, he was incarcerated by the deputy marshal in Waterloo, Iowa. Each morning he was brought to the place of trial in Eldora in time to confer with his attorneys, and after adjournment each day he was also permitted to confer with them. He was with his attorneys, of course, throughout the trial itself.

Trial commenced September 22, 1971. The evidence showed that defendant bought some cattle at a sale barn for $10,475.36 and delivered his check to the sale barn in that amount. The check was drawn on the Security State Bank of Radcliff, Iowa, and was marked 'Special Account.' The sale barn endorsed

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the check with its endorsement stamp, 'Payable to the Order of the First National Bank, Eldora, Iowa.' The manager of the sale barn became suspicious about the check, however, and presented it directly to the Security State Bank the day after the check was received. That bank refused payment because defendant did not have funds there.

The evidence also showed that the Security State Bank had two signature cards signed by defendant. One was for a special account, but this account had not been opened by a deposit of funds. The other was a joint account of defendant and his wife. That account previously contained funds, but on the day the check was delivered it contained only 88 cents and on the next day it was overdrawn 12 cents. Exhibits B, the signature card for the joint account, and C, the bank record showing the status of that account, were introduced over defendant's objection.

An officer of the Security State Bank testified...

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8 practice notes
  • Iowa v. Buckley, No. 1--56537
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...6 and 14 of the United States Constitution and Art. I, § 10, of the Iowa Constitution is also without merit. See State v. Kimball, 203 N.W.2d 296, 300--301 (Iowa The trial court's order cannot be supported on either ground urged by defendant. The court erred in sustaining defendant's motion......
  • State v. Taylor, No. 55757
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1973
    ...of unconstitutional deprivation of speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; State v. Kimball, 203 N.W.2d 296 As to the time lapse resulting from the order for deferred sentence, any delay was self-inflicted by defendant. Through his counsel, he sought ......
  • State v. Coburn, No. 58736
    • United States
    • United States State Supreme Court of Iowa
    • July 30, 1976
    ...day 'make good' notice provision in Code § 713.4 is merely a rule of evidence, not an element of a § 713.3 offense. See State v. Kimball, 203 N.W.2d 296, 300 (Iowa 1972); State v. Callahan, 23 Conn.Sup. 374, 183 A.2d 861, 863--864 (1962); 35 C.J.S. False Pretenses § 21b at II. Ordinarily ev......
  • State v. Fletcher, No. 95-0930
    • United States
    • Court of Appeals of Iowa
    • July 26, 1996
    ...State argues defendant's imprisonment did not deny him access to his counsel and did not necessarily prejudice him. See State v. Kimball, 203 N.W.2d 296, 299 (Iowa 1972) (citing Kime v. Brewer, 182 N.W.2d 154, 156 (Iowa The question is whether defendant's trial attorney had a reasonable opp......
  • Request a trial to view additional results
8 cases
  • Iowa v. Buckley, No. 1--56537
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...6 and 14 of the United States Constitution and Art. I, § 10, of the Iowa Constitution is also without merit. See State v. Kimball, 203 N.W.2d 296, 300--301 (Iowa The trial court's order cannot be supported on either ground urged by defendant. The court erred in sustaining defendant's motion......
  • State v. Taylor, No. 55757
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1973
    ...of unconstitutional deprivation of speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; State v. Kimball, 203 N.W.2d 296 As to the time lapse resulting from the order for deferred sentence, any delay was self-inflicted by defendant. Through his counsel, he sought ......
  • State v. Coburn, No. 58736
    • United States
    • United States State Supreme Court of Iowa
    • July 30, 1976
    ...day 'make good' notice provision in Code § 713.4 is merely a rule of evidence, not an element of a § 713.3 offense. See State v. Kimball, 203 N.W.2d 296, 300 (Iowa 1972); State v. Callahan, 23 Conn.Sup. 374, 183 A.2d 861, 863--864 (1962); 35 C.J.S. False Pretenses § 21b at II. Ordinarily ev......
  • State v. Fletcher, No. 95-0930
    • United States
    • Court of Appeals of Iowa
    • July 26, 1996
    ...State argues defendant's imprisonment did not deny him access to his counsel and did not necessarily prejudice him. See State v. Kimball, 203 N.W.2d 296, 299 (Iowa 1972) (citing Kime v. Brewer, 182 N.W.2d 154, 156 (Iowa The question is whether defendant's trial attorney had a reasonable opp......
  • Request a trial to view additional results

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