State v. Moore
| Decision Date | 18 April 1974 |
| Docket Number | No. 13225,13225 |
| Citation | 521 P.2d 556 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Harold Michael MOORE, Defendant and Appellant. |
| Court | Utah Supreme Court |
Paul D. Vernieu of Weber County Legal Aid Services, Inc., Ogden, for defendant and appellant.
Vernon B. Romney, Atty. Gen., M. Reid Russell, Asst. Atty. Gen., William W. Barrett, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
The defendant appeals from two separate verdicts of guilty and judgments entered by the District Court of Weber County for the crimes of selling controlled substances. In the district court the defendant made pretrial motions to dismiss, and a post-trial motion in arrest of judgment, all of which were grounded on lack of jurisdiction in the trial court, and the separate motions were denied.
On September 17, 1971, two separate complaints were filed in the Ogden City Court charging the defendant with the crimes of selling marijuana and heroin. The defendant was admitted to bail by the City Court, and his motion for a continuance to enable him to obtain counsel was granted. After the defendant appeared with counsel, preliminary examination was set for November 26, 1971. On November 26, the prosecution, not being ready to proceed, was granted a continuance by the court. On November 26, the defendant was taken into custody for violation of his parole under a prior conviction. Defendant was returned to the Utah State Prison on December 2, 1971.
On December 30, 1971, the defendant delivered to the warden of the State Prison his written request for a final disposition of any charges pending against him. The State decided to proceed with the prosecution, and a preliminary examination in each case was set for February 8, 1972. On February 8, 1972, the prosecution was not ready to proceed and moved the court for a further continuance, which was denied. The court ordered that the complaints be dismissed for failure to prosecute. On February 9, 1972, new complaints were filed which charged identical offenses as were contained in the first complaints. On March 8, 1972, a preliminary hearing was had in the City Court on the new complaints, and the defendant was held to answer as to each case.
A trial was had in the District Court of Weber County on April 12, 1972, at which time the defendant renewed his motions to dismiss for lack of jurisdiction. After verdicts of guilty were returned as to each information, the defendant filed motions in arrest of judgment. The motions were denied and the defendant sentenced to serve concurrent terms in the Utah State Prison.
We are again called upon to consider the provisions of Section 77--65--1(a), U.C.A.1953, as amended, the pertinent part of which is as follows:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within ninety days after he shall have caused to be delivered to the county attorney of the county in which the indictment, information or complaint is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided, that for a good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance . . .. (Emphasis added.)
The interpretation of this statute has been before the court on prior occasions. In the case of State v. Belcher, 1 the trial court had for a good cause shown continued the trial of the case beyond the 90 days but pursuant to the terms of the statute. In the case of State v. Clark, 2 it was decided by a divided court that the 90-day period provided by the statute commenced to run after an information in a felony case had been filed and thereafter notice had been given by the defendant. After further consideration and examination of the statute we conclude that the 90-day period commences on the day the defendant notified the county attorney of his request for final disposition of a case or cases pending against him, and the filing of a complaint, information or indictment does not affect the commencement of that period. 3 The procedure of dismissing a complaint or an information and thereafter filing a complaint or an information charging an identical offense cannot be used by a prosecutor to avoid a mandate of the statute as was done in this case.
The verdicts and judgments of the court below are reversed.
The defendant alleges two grounds of error in the court below:
1. Lack of speedy trial.
2. Lack of jurisdiction to try him by reason of the operation of Sections 77--65--1 and 77--65--2, Utah Code Annotated 1953 as amended.
Defendant while on parole from the Utah State Prison was charged with two felonies, to wit, selling marijuana and selling heroin. On November 26 he was arrested for parole violation, and after a hearing by the board his parole was revoked, and he was reincarcerated in the state prison. On December 30 he demanded that all charges then pending against him be finally disposed of as provided by law. On February 8 following, the State was unable to have the chemist present at the preliminary hearing, and the committing magistrate dismissed the complaints.
On February 9 the defendant was charged in two new complaints with the same crimes, and preliminary hearings were held March 8. The committing magistrate finding from the evidence that the two crimes alleged in the complaints had been committed and that there was probable cause to believe the defendant had committed them ordered him to be held for trial in the district court.
The defendant was formally charged by information filed on March 15, only seven days after he had been bound over for trial. He was tried April 12 following and was by jury verdict found guilty as charged.
Defendant contends that his constitutional right to a speedy trial was denied. There is no merit to this contention. In the case of State v. Renzo 1 the same claim was made by the defendant and was rejected by this court in the following language:
. . . The constitutional protection afforded one relative to a speedy trial has no application until after a prosecution is instituted. See Foley v. United States, 8 Cir., 290 F.2d 562, cert. den. 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88 (1961), holding that prosecution is not...
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