State v. Presbuch, Cr. N

• Decision Date: 24 April 1985
• Docket Number: Cr. N
• Citation: 366 N.W.2d 794
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. John G. PRESBUCH, Defendant and Appellee. o. 1060.
• Court: North Dakota Supreme Court

Page 794

366 N.W.2d 794

STATE of North Dakota, Plaintiff and Appellant, v. John G. PRESBUCH, Defendant and Appellee.

Cr. No. 1060.

Supreme Court of North Dakota.

April 24, 1985.

Tom P. Slorby, State's Atty., Minot, for plaintiff and appellant State of North Dakota; on brief.

E.J. Bosch, Minot, for defendant and appellee; on brief.

VANDE WALLE, Justice.

The State appealed from the order of the Ward County court dismissing a Class A misdemeanor charge against John G. Presbuch of failing to perform a duty upon striking an unattended vehicle as required by Section 39-08-07, N.D.C.C. We affirm.

Briefly stated, the facts of this case are as follows. The State originally charged Presbuch with violation of Section 39-08-07 by means of a complaint dated January 4, 1982. The complaint stated that on December 26, 1981, Presbuch failed to give notice as required by Section 39-08-07 after his vehicle had collided with an unattended vehicle.

On January 5, 1982, Presbuch was served with a warrant and arrested. At that time, Presbuch signed an acknowledgment to appear in court on January 21, 1982. Counsel for Presbuch appeared on January 21, 1982, and entered a plea of not guilty. Presbuch claims that the trial court advised his counsel that he would be notified of the trial date.

The records of the Ward County court apparently did not reflect the January 21, 1982, initial appearance. Instead, the court sent a letter to Presbuch notifying him of a February 15, 1984, scheduled initial appearance. Neither Presbuch nor his counsel appeared before the court on February 15. The court subsequently set a trial date for March 30, 1984. At that time counsel for Presbuch was present but Presbuch was not. Counsel moved the court to dismiss the charge because Presbuch, a member of the U.S. Air Force, had been transferred in December 1983 to Germany and he could not be present for trial. Counsel argued that under Rule 43, N.D.R.Crim.P., Presbuch had the right to be present at trial. Presbuch had not executed a written consent to permit arraignment, plea, trial, and imposition of sentence in his absence. Counsel additionally argued that the court should dismiss the charge on Sixth Amendment speedy-trial grounds, that under Rule 50, N.D.R.Crim.P., criminal cases must be given preference in the interest of justice, and that under Section 3 of AR-12, North Dakota Docket Currency Standards for District Courts and County Courts, criminal cases are to be given quick disposition. Counsel for Presbuch thus argued that if the court were to require Presbuch to return for trial it would be a gross injustice resulting in a great deal of expense for Presbuch and possibly jeopardizing his military career.

The State resisted the motion to dismiss on several grounds: The State had never asked for a continuance in this case; Presbuch never filed a demand for a speedy trial and he thus had waived his right to a speedy trial; and the State had made a good-faith effort to afford Presbuch a speedy trial by requesting on two separate occasions that the court set an early trial date.

The trial court subsequently dismissed the charge against Presbuch because he was stationed in Germany and there was no way to force his return.

The State contends on appeal that the trial court erred in dismissing the criminal complaint against Presbuch. It is the State's position that the trial court was without authority to dismiss the charge against Presbuch. We disagree. Rule 48(b), N.D.R.Crim.P., clearly permits a trial court to dismiss the complaint if there is unnecessary delay in bringing a defendant to trial. The basic factors considered relevant in determining whether or not the right to a speedy trial has been denied include: length of the delay, reason for the delay, assertion of the right by the defendant, and prejudice to the defendant. State v. Wunderlich, 338 N.W.2d 658 (N.D.1983), citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We indicated in Wunderlich that the factors are related and must be considered together with other relevant circumstances and the trial court must then engage in a difficult and sensitive balancing process.

Because the delay was not caused by any conduct of the State, the State asserts, with some justification, that the case should not be dismissed. ¹ However neither was the delay caused by the defendant's conduct, although he did not press his right to a speedy trial. The...