State v. Nelson

• Decision Date: 16 October 1974
• Docket Number: No. 56825,56825
• Citation: 222 N.W.2d 445
• Parties: STATE of Iowa, Appellee, v. Patsy Ann NELSON, a/k/a Patsy Ann Moriarty, Appellant.
• Court: Iowa Supreme Court

Page 445

222 N.W.2d 445

STATE of Iowa, Appellee, v. Patsy Ann NELSON, a/k/a Patsy Ann Moriarty, Appellant.

No. 56825.

Supreme Court of Iowa.

Oct. 16, 1974.

Hall, Ewalt & Hall, Indianola, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Robert A. Gottschald, Co. Atty., for appellee.

Heard before MOORE, C.J. and MASON, RAWLINGS, LeGRAND and REYNOLDSON, JJ.

LeGRAND, Justice.

Although several issues are raised on this appeal, we consider only defendant's assertion the case should have been dismissed for the State's failure to file an information against her within 30 days from the date she was held to answer to the charge of operating a motor vehicle while under the influence of an alcoholic beverage. See § 795.1, The Code. We hold defendant's position is well taken. We reverse the judgment and remand the case to the trial court with instructions to enter an order dismissing the county attorney's information.

Before reaching the precise question before us, we review the background events leading to the present controversy. Until April 25, 1973, we had interpreted § 795.1 (relating to speedy indictment) and § 795.2 (relating to speedy trial) to mean the 30-day period allowed in § 795.1 and the 60-day period allowed in § 795.2 were waived by failure of a defendant, when represented by counsel and out on bail, to demand one or the other. Put differently, we had held a demand was necessary to start the running of those periods.

On April 25, 1973, we handed down State v. Gorham, 206 N.W.2d 908 (Iowa 1973), a case dealing with speedy trial under § 795.2. There we modified our previous rule by holding failure to demand speedy trial while a factor to be considered, does not alone toll the running of the time period in § 795.2. We did so to conform to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Our new position is fully explained in Gorham and need not be discussed here. Since that case dealt only with a speedy trial demand under § 795.2, it did not necessarily settle any questions arising under the companion statute (§ 795.1) concerning the right to a speedy trial indictment. Nevertheless, it was clear the same reasons which impelled Gorham applied equally to § 795.1 cases. We recognized this in State v. Morningstar, 207 N.W.2d 772 (Iowa 1973), decided one month after Gorham. Morningstar, although the result there turned on other grounds, contained this significant statement at page 775:

'Since § 795.1 is inapplicable, we need not consider defendant's attack upon our former rule that a person who is held to answer must demand speedy trial or he waives the benefit of that section. However, were § 795.1 applicable, failure to make a demand would not have prevented operation of that section, for we have recently eliminated demand as a prerequisite to operation of the section. State v. Gorham, 206 N.W.2d 908 (Iowa).'

Now the issue of whether Gorham's rationale applies also to cases arising under § 795.1 is squarely presented. From what we have already said, our answer to that question is easily predictable. The Gorham rule is the standard for cases arising under § 795.1 as well as for those under § 795.2.

One other preliminary matter should be discussed. Gorham was not retroactive. It was made applicable only to certain classes of cases, one of which was those in which an indictment or information was filed after April 25, 1973. We hold today's decision is effective as of that same date with one modification made necessary by the different purposes as which §§ 795.1 and 795.2 serve. In Gorham we said the rule would apply to 'cases in which an indictment is returned or a county attorney's information is filed after the filing of this (Gorham) opinion.' The critical time under § 795.1 is not the date an indictment or information is filed but the date upon which a defendant 'is held to answer.' The instant case, therefore, applies to all charges to which one was held to answer after the date of the Gorham opinion.

With this in mind, we consider the facts upon which this appeal rests. Defendant was arrested on July 17, 1973, and charged with operating a motor vehicle while under the influence of an alcoholic beverage. § 321.281, The Code. On July 18, she was taken before a magistrate, where she waived preliminary hearing, and was bound over to the grand jury. At that time she was held to answer under § 795.1. State v. Morningstar, supra, 207 N.W.2d at 775. Since this was some three months after the Gorham opinion, defendant is entitled to the benefit of that decision. The case then remained dormant for 36 days, when a county attorney's information was filed. Defendant promptly filed her motion seeking a dismissal of the charge against her for the State's failure to observe the provisions of § 795.1. After a hearing, the motion was overruled.

The pertinent provision of the statute in question contains the following:

'When a person is held to answer for a public offense, if an indictment be not found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown. * * *'

While it is perhaps unnecessary to do so, we point out that the reference in the statute to the filing of an indictment includes also cases prosecuted on county attorney's information. See § 769.13, the Code, 1973; State v. Morningstar, supra, 207 N.W.2d at 774; State v. Williams, 193 N.W.2d 529, 530 (Iowa 1972).

The trial court correctly found defendant was entitled to the benefit of the provisions of § 795.1. However, the court further held the State had shown good cause to the contrary. We cannot agree and hold the case must be reversed. We do not overlook the rule that whether good cause exists or not is a matter which lies largely in the trial court's discretion. Davison v. Garfield, 219 Iowa 1258, 1262, 257 N.W. 432, 434, 260 N.W. 667 (1934) (modified on other grounds); Maher v. Brown, 225 Iowa 341, 343--344, 280 N.W. 553, 554 (1938) and citations. However, under the circumstances now before us, we hold there was no basis upon which the trial court could find it existed and we must therefore reverse.

Defendant was arrested, booked and charged in the name of Patsy Ann Nelson. During a previous marriage her name was moriarty; and, when arrested, her driver's license was still in that name. Defendant submitted to a blood test and the analysis of the blood sample was returned by the laboratory in the name of patsy Ann Moriarty. However, she still stood charged in the name of Patsy Ann Nelson.

With this preface, we set out the county attorney's statement to the trial court at the hearing on the motion to dismiss, which was the only showing of good cause offered by the State:

'Your Honor, on behalf of the State we would resist that motion (to dismiss) and show to the court that we do have good cause for this charge not being filed within 30 days. When Patsy Ann Nelson or Patsy Ann Moriarty was booked at the police station she was booked under the name of Patsy Ann Nelson and she did submit to a blood alcohol test, and while I was waiting for that report to come back there was a report that was returned to my office from the BCI lab giving the name of Patsy Ann Moriarty and also after that name, perhaps through some mistake, had marked (a 'V') after her name, which would indicate a victim. The usual procedure in the lab is that if it is a death they will mark (a 'V') after the name. If there is an 'S' after the name that stands for suspect and that would mean that was an active case.

'When I received this blood test on a Patsy Ann Moriarty with ('V') after it I myself did not make the association between the blood alcohol test of Patsy Ann Nelson and Patsy Ann Moriarty in this particular case, and essentially since it had the ('V') marked after it, I was led to believe by the lab report that this had been a death that had occurred in Warren County and did not make the connection. As soon as I realized that Patsy Ann Moriarty and Patsy Ann Nelson were one and the same, I charged her immediately with the information.

'In this particular case, Your Honor, it is just simply a mistake on my part that I didn't make the association between Patsy Ann Nelson and Patsy Ann Moriarty when this lab report came back from the Iowa Criminalistics Laboratory. I think it hasn't been an undue hardship on the defendant, as stated in the defendant's motion. This is a matter of 36 days that had gone by before she was indicted and merely 39 days since she was brought to arraignment. In this particular case only six days had gone by, Your Honor, prior to the defendant being indicted and charged in this particular case, and we feel we have good cause in this particular case, Your Honor, and would ask that the motion to dismiss in this particular...