State v. Ransom, 54636

• Decision Date: 02 December 1983
• Docket Number: No. 54636,54636
• Citation: 673 P.2d 1101,234 Kan. 322
• Parties: , 39 A.L.R.4th 891 STATE of Kansas, Appellant, v. Peter H. RANSOM, Appellee.
• Court: Kansas Supreme Court

Page 1101

673 P.2d 1101

234 Kan. 322, 39 A.L.R.4th 891

STATE of Kansas, Appellant, v. Peter H. RANSOM, Appellee.

No. 54636.

Supreme Court of Kansas.

Dec. 2, 1983.

As Modified Dec. 16, 1983.

Syllabus by the Court

1. Where the State dismisses a pending criminal case without making a showing of necessity, and then files a second case charging the same defendant with the same offense, a court must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution, when calculating time for the purpose of applying K.S.A. 22-3402, the Kansas speedy trial statute.

2. Where the State dismissed a pending criminal case upon a showing of necessity and then files a second criminal case charging the same defendant with the same offense, the computation of time for the purpose of applying K.S.A. 22-3402 commences from the time the defendant is arraigned in the second case.

Steven L. Opat, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Charles A. Chartier, Junction City, argued the cause and was on the brief for appellee.

MILLER, Justice:

This appeal by the State from an order dismissing an information charging the defendant with aggravated kidnapping, rape, aggravated battery and aggravated robbery was heard by this court in January 1983, and a divided court affirmed the dismissal. The Chief Justice's opinion, accurately stating the facts, the issue, and the decision of the majority, was filed on March 31, 1983. State v. Ransom, 233 Kan. 185, 661 P.2d 392 (1983). In May, we granted a rehearing. The appeal was reargued by counsel, and we now reverse.

The facts are fully set forth in the earlier opinion. The defendant was arraigned in Geary District Court in case No. 81 CR 399 on August 13, 1981, on charges of aggravated kidnapping, rape, aggravated battery and aggravated robbery. On March 4, 1982, the State requested a continuance, citing as grounds its difficulty in obtaining the presence of three witnesses, including two doctors who planned to be out of state on the proposed trial date. On March 5, the trial court denied the requested continuance, and the State immediately moved to dismiss the case without prejudice. That motion was granted. At that time, 121 days were chargeable to the State. Defendant had been free on bond. Four days later a new case, No. 82 CR 111, was filed. The new case charged the defendant with the same offenses. Defendant was arraigned on March 31, 1982. Trial was set to commence on May 3, 1982. The State again experienced trouble securing the attendance of an out-of-state medical witness, and moved for a continuance. The trial court granted the motion on April 30 and set the case for trial at 8:30 o'clock a.m., on June 9, 1982. On June 7, defendant moved for discharge and the trial court sustained that motion. The court found that under the doctrine adopted by this court in State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979), the time spans chargeable to the State in the two cases must be totalled; that the defendant had been held to answer in both cases for a total of 189 days; and that since the State had failed to bring him to trial within the 180-day period prescribed by K.S.A. 22-3402(2), he was entitled to be discharged. That statute provides as follows:

"(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

The delay in this case did not happen as a result of the application or fault of the defendant, and no continuance was ordered by the trial court under subsection three.

In addition to Cuezze, two other cases involving our speedy trial statute should be discussed. In State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975), we held that the time limitations of K.S.A. 22-3402 do not commence to run until a defendant is arraigned, and that the time between arrest and arraignment is not to be included in computing the 90-day or 180-day periods within which the accused must be brought to trial. In Fink, the original proceeding was dismissed prior to arraignment, and thus the statute did not come into play. In State v. Hunt, 8 Kan.App.2d 162, 651 P.2d 967 (1982), the defendant was originally charged with aggravated assault and unlawful use of weapons. Hunt was arraigned on November 10, 1980. On March 31, 1981, the date on which trial was to take place, the State moved to dismiss the charged without prejudice as one of the State's witnesses could not be located. The witness was not an "essential" witness, and the State did not make a showing of necessity. On April 3, 1981, a new information was filed charging Hunt with aggravated battery, unlawful use of weapons, and making a terroristic threat. That information was amended before Hunt was arraigned, altering the aggravated battery charge to aggravated assault, and dropping the terroristic threat charge. On May 13, 1981, the defendant was arraigned on the amended information. A jury trial was held on July 27, 1981, 75 days after arraignment in the second case, but 259 days after arraignment in the original case. The Court of Appeals reversed Hunt's conviction on the aggravated assault charge, holding that since the State dismissed the original prosecution without showing necessity, the time between arraignment and dismissal on the original charge had to be added to the time between arraignment and trial in the second case in order to calculate the 180-day period allowable by statute. When this was done, it was readily apparent that the time had expired prior to trial and Hunt was entitled to be discharged. The decision was based upon our holding in Cuezze, which the Court of Appeals held to be controlling. Due to factual differences, neither Fink nor Hunt is helpful here.

We turn now to the Cuezze case. K.S.A. 22-3402 does not deal with the voluntary dismissal of charges by the State and the inclusion of like charges in a new or subsequent complaint or information. We dealt with that problem in Cuezze. There, Cuezze and Houston were charged in the original information with two counts of making a false writing and two counts of conspiracy. Both were arraigned on those charges, Houston on May 20, 1977, and Cuezze on June 13, 1977. In May 1977, the State secured additional information linking Faltico to the illegal conduct. Over three months later, in September 1977, the State filed a new case against Cuezze, Houston and Faltico, and sometime thereafter the State dismissed the original case against Cuezze and Houston. Both defendants were arraigned on the new charges on January 19, 1978. The trial court dismissed the charges against both Cuezze and Houston on May 18, 1978, and we affirmed that dismissal, finding that K.S.A. 22-3402(2) had been violated. We said:

"As we said in Warren [State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336 (1978) ], the purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute. As pointed out by the trial court, our prior cases relied upon by the State arose out of different factual situations or issues than those now before the court. It should also be noted that no attempt was made by the State to secure additional time in the first case to develop evidence as contemplated by K.S.A. 1978 Supp. 22-3402(3)(c )." (Emphasis supplied.) 225 Kan. at 278, 589 P.2d 626.

In Kansas, we recognize both the constitutional right to a speedy trial and the right to a speedy trial enunciated by K.S.A. 22-3402. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983), where both rights are fully discussed and distinguished. Here, there is no claim of a constitutional violation. In this case we are only concerned with the statutory right.

Cuezze establishes the principle that the State cannot dismiss a criminal action and commence a new one containing identical charges--absent a showing of necessity--and avoid the time limitations of K.S.A. 22-3402. We have not decided what constitutes a showing of necessity under Cuezze, nor have we determined what time limitations apply if the State does dismiss and refile upon a showing of necessity.

The literal language of Cuezze implies that the time chargeable to the State in the first action is to be added to that accrued in the second action only if the dismissal is made without a showing of necessity; ergo, if the dismissal is made with a showing of necessity, the computation of the statutory time, whether it be 90 or 180 days, commences anew upon the filing of the second case and arraignment therein. This is logical, and we so hold. See State v. Haislip, 234 Kan. 329, 673 P.2d 1094 (1983) (this day decided). To avoid the statutory time limitations, the State must make a showing of necessity.

We turn now to the facts in the case before us in order to determine whether the State made a showing of necessity at the time it dismissed the original case against Ransom. The State moved for a continuance of the trial date for the reason that one...