State v. Montgomery, No. 57226

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard before MOORE; HARRIS
Citation232 N.W.2d 525
Docket NumberNo. 57226
Decision Date29 August 1975
PartiesSTATE of Iowa, Appellant, v. Virgil MONTGOMERY, Appellee.

Page 525

232 N.W.2d 525
STATE of Iowa, Appellant,
v.
Virgil MONTGOMERY, Appellee.
No. 57226.
Supreme Court of Iowa.
Aug. 29, 1975.

Richard C. Turner, Atty. Gen., and Lyle A. Rodenburg, County Atty., for appellant.

Roderic A. Pearson, of Peters, Campbell & Pearson, Council Bluffs, for appellee.

Page 526

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

HARRIS, Justice.

Virgil Montgomery (defendant) was arrested November 3, 1973 and charged with assault with intent to commit murder in violation of § 690.6, The Code. On defendant's motion the case was dismissed. On the State's appeal we reverse the trial court and remand.

Following his arrest defendant was incarcerated for two days before he appeared before an associate district court judge and entered a plea of not guilty. He requested appointment of counsel at public expense. The matter was set for the next day, November 6, 1973 at 10:00 a.m. On the following day an attorney was appointed to represent defendant. Defendant appeared with counsel as scheduled. Defendant's appearance bond was set at $2500 and a preliminary examination was set for November 28, 1973. Defendant was unable to make bail.

On November 28, 1973 preliminary examination was continued until December 12, 1973, the order stating it was done 'by agreement of the parties.'

On December 10, 1973 a county attorney's information was filed charging defendant with assault with intent to commit murder. The last entry on the calendar of the associate district court judge was dated December 12, 1973 and ordered dismissal of the preliminary examination at the request of the county attorney for the reason a 'true information has been filed.'

Defendant appeared with his court appointed counsel in district court on December 28, 1973. The calendar entry showed defendant received a copy of the information, waived time for speedy trial, and entered a plea of not guilty. The court released defendant on his own recognizance and set trial for the week of February 12, 1974. On January 28, 1974 defendant's counsel wrote the district court judge advising he would be unable to try the case the week of February 12 because of a conflict. Unsatisfied with the efforts of his counsel defendant requested a new attorney on February 26, 1974. The trial court granted his application, and appointed defendant's present counsel, also at public expense.

Defendant filed a motion to dismiss on March 5, 1974 on three grounds. (1) No preliminary examination was held in accordance with § 761.1, The Code; (2) an indictment was not found against him within 30 days as required by § 795.1, The Code; and (3) defendant was not brought to trial within 60 days after filing of the information as required by § 795.2, The Code. The trial court sustained the motion on the first two grounds and did not rule on the...

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9 practice notes
  • State v. Brandt, Nos. 59122-59124
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...to bring a defendant to trial under the provisions of this statute. State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975); State v. Montgomery, 232 N.W.2d 525, 527 (Iowa 1975). Consequently, when the state, as here, relies on "good cause" in resistance to a defendant's motion to dismiss for failu......
  • State v. Fowler, No. 58472
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1976
    ...519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).' See also State v. Montgomery, 232 N.W.2d 525 (Iowa 1975); State v. Grady, 231 N.W.2d 869 (Iowa 1975); State v. Lass, 228 N.W.2d 758 (Iowa Parenthetically, Judge Steffen would have been ......
  • State v. Wing, No. 08-1048.
    • United States
    • United States State Supreme Court of Iowa
    • December 3, 2010
    ...(1975). The "held to answer" standard essentially meant the person was held to answer by a preliminary examination. State v. Montgomery, 232 N.W.2d 525, 526-27 (Iowa 1975). The concept of "held to answer" was unrelated to physical restraint, but concerned the appearance in court to answer t......
  • State v. Proulx, No. 56835
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...that he was "held to answer" when he pleaded not guilty is refuted by many of this court's recent opinions. In State v. Montgomery, 232 N.W.2d 525, 526-527 (Iowa 1975), this court " * * * In a number of cases we have held the term 'held to answer,' within the meaning of § 795.1, means 'held......
  • Request a trial to view additional results
9 cases
  • State v. Brandt, Nos. 59122-59124
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...to bring a defendant to trial under the provisions of this statute. State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975); State v. Montgomery, 232 N.W.2d 525, 527 (Iowa 1975). Consequently, when the state, as here, relies on "good cause" in resistance to a defendant's motion to dismiss for failu......
  • State v. Fowler, No. 58472
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1976
    ...519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).' See also State v. Montgomery, 232 N.W.2d 525 (Iowa 1975); State v. Grady, 231 N.W.2d 869 (Iowa 1975); State v. Lass, 228 N.W.2d 758 (Iowa Parenthetically, Judge Steffen would have been ......
  • State v. Wing, No. 08-1048.
    • United States
    • United States State Supreme Court of Iowa
    • December 3, 2010
    ...(1975). The "held to answer" standard essentially meant the person was held to answer by a preliminary examination. State v. Montgomery, 232 N.W.2d 525, 526-27 (Iowa 1975). The concept of "held to answer" was unrelated to physical restraint, but concerned the appearance in court to answer t......
  • State v. Proulx, No. 56835
    • United States
    • United States State Supreme Court of Iowa
    • April 20, 1977
    ...that he was "held to answer" when he pleaded not guilty is refuted by many of this court's recent opinions. In State v. Montgomery, 232 N.W.2d 525, 526-527 (Iowa 1975), this court " * * * In a number of cases we have held the term 'held to answer,' within the meaning of § 795.1, means 'held......
  • Request a trial to view additional results

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