State v. Reed, WD

• Decision Date: 21 September 1982
• Docket Number: No. WD,WD
• Citation: 640 S.W.2d 188
• Parties: STATE of Missouri, Respondent, v. Jeffrey E. REED, Appellant. 32368.
• Court: Missouri Court of Appeals

Page 188

640 S.W.2d 188

STATE of Missouri, Respondent, v. Jeffrey E. REED, Appellant.

No. WD 32368.

Missouri Court of Appeals Western District.

Sept. 21, 1982.

Theodore Kranitz, St. Joseph, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., and WASSERSTROM and LOWENSTEIN, JJ.

WASSERSTROM, Judge.

On an information charging manslaughter by culpable negligence in the operation of a motor vehicle, the jury found defendant guilty and assessed punishment at six months in the county jail. From judgment and sentence entered accordingly, defendant appeals. We affirm.

I.

For his first point, defendant complains that his motion to dismiss should have been sustained because of the state's failure to afford him a speedy trial as required by Section 545.780. ¹ This assignment subdivides into two parts, each of which will be discussed in order.

A. The ten day requirement. The information here was filed December 12, 1979. The arraignment did not take place until February 2, 1980, 21 days later. This delay violated Section 545.780-1 which provides that the arraignment "shall be held within ten days from the filing of the information...."

However, that violation has been waived by the defendant. Following his arraignment, he took a change of venue, engaged in considerable discovery, and sought or participated in seeking two continuances, both of which were granted. Those procedural events were initiated by and for the ostensible benefit of defendant after his arraignment during a span of time when he knew he had not previously been timely arraigned. His inordinate delay in waiting until the time of trial to move for dismissal of the information on the ground that he had not been timely arraigned, coupled with the fact that the procedural events he engaged in heralded preparation for a forthcoming trial, bespeak a conscious waiver of any rights of dismissal of the information because of untimely arraignment. This conclusion should not be construed as indicative that the same considerations are applicable regarding waiver of the 180 day rule, next to be discussed. The main force of Section 545.780, particularly in view of the provisions for excludable delays which are tied to events customarily arising after arraignment, is directed primarily toward the 180 day provision now to be considered.

B. The 180 day requirement. The arraignment in this case took place January 2, 1980, but the trial did not commence until October 22, 1980, a lapse of 294 days. This bare showing carries the defendant's initial burden of proving that he has been denied a speedy trial. State v. Richmond, 611 S.W.2d 351 (Mo.App.1981); State v. Franco, 625 S.W.2d 596 (Mo.1982).

At this point, under the foregoing authorities, the burden was cast upon the state to show "excluded time" sufficient to reduce the time lapse to the 180 days permitted. The state admits that obligation and attempts to fulfill the task by showing that certain exclusions should be made under the provisions of Section 545.780-3. The first such exclusion has to do with delay resulting from a change of venue sought and obtained by defendant. The state says that this period should be 21 days, running from March 31 when the parties stipulated to the change of venue until April 21, when the change was finalized. Defendant concedes that some period of time is excludable for this reason under the specific direction of Section 545.780-3(1)(d). However, he contends that the excludable period should be only 14 days, with the excludable period not beginning until April 7, the date for which the case had already been set for trial. The state's computation appears to be correct and will be used in the various time computations which follow in this opinion.

A second exclusion requested by the state is the one day of October 20, 1980, which was devoted to pretrial motions. This one day is clearly excludable under the specific provision of Section 545.780-3(1)(c). Adding together the two exclusions thus far mentioned makes a total of 22 days, which when subtracted from the 294 days total elapsed time, brings the lapse to a reduced figure of 272 days.

In order to reduce the lapse still further so as to fall below the permitted 180 days, the state next seeks to exclude 98 days of continuances. The first continuance was a six day period from July 15 to 21, consumed by reason of a stipulation of the parties for a trial setting. The next continuance was for 91 days, July 21 to October 21, resulting from a continuance granted at defendant's request. A third continuance of one day occurred from October 21 to 22, apparently called for by the trial judge.

No part of said 98 days of continuances may be properly excluded. With respect to the effect to be given continuances, Section 545.780-3(5)(a) provides for the exclusion of:

"Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant's attorney, or the defendant, or at the request of the prosecuting attorney if the continuance is consented to by the defendant's attorney or the defendant and if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the benefits of a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this section unless the court sets forth, in the record of the case, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." (Emphasis added).

Lamentably, the trial judge in this case did not make any record of reasons for the granting of any of the three continuances in question. Under the unequivocal direction of the statute, the delay entailed by those continuances cannot be treated as excludable.

Thus the nonexcludable delay amounts to 272 days, which far exceeds the permitted 180 day maximum delay. Nevertheless, the defendant is not entitled to a dismissal of the proceeding unless he undertakes and carries the burden of showing that the failure to meet the time limit was "occasioned" by the state. ² Section 545.780-5 provides in this respect:

"If a defendant is not brought to arraignment or trial within the time limit required by this section, the trial judge may dismiss the information or indictment upon motion by the defendant and a showing by defendant that the failure to have the trial commence within time limits specified herein was occasioned by the state."

What is meant by the unusual term "occasioned" has been discussed by this court in State v. Richmond, supra 611 S.W.2d at 357, as follows:

"What was in the legislative mind when it used the unfamiliar statutory word 'occasioned', instead of the obvious legal word 'caused'? Obviously the legislature intended something less than 'caused'.... A delay may be 'occasioned' by the state by mere neglect, by failure actively to move the case forward, by simple inertia, when the delay could not be said to have been 'caused' thereby...."

The state argues that it did not "occasion" the delays incident to the three continuances and that if the period consumed by those continuances is subtracted, then the total lapse is reduced to 174 days, well within the 180 day statutory permission. Anamalous though it might appear, the reasons for the continuances must be considered at this point even though, as already stated, these same continuances cannot be considered as excluded time because of the failure of the trial court to make appropriate findings of fact. The difference in treatment for these two different purposes was clearly spelled out in State v. Franco, supra.

In Franco, continuances were granted at request of the defendant, which had the effect of making the trial more than 180 days after the arraignment. No findings were made by the trial court as to the reasons, as required by Section 545.780-3(5)(a). Nevertheless the court held that the period of delay, while not excludable, was not occasioned by the state, and the court therefore affirmed the action of the trial court in overruling the defendant's motion to dismiss under the speedy trial law. In this respect the Franco opinion holds:

"In none of the continuances at the request of the defendant did the trial court make the finding required by Section 545.780 3. (5)(a) in order to make the delay therefrom excusable. However, if the defendant was to receive relief under Section 545.780 5., he had the burden of showing not only the passage of more than 180 days but the further burden of showing that the failure to bring him to trial within that time was 'occasioned' by the state. State v. Newberry, 605 S.W.2d 117, 123-124 (Mo.1980)."

Just as in Franco, so also here the state did not occasion the delays from the three continuances. Concerning the six day delay arising from the stipulation for a trial setting, the state should not be penalized because of a reasonable and commendable effort by the prosecuting attorney to cooperate with defense counsel in fixing a mutually agreeable date. With even more reason, the state should not be charged with the 91 days of delay which resulted from defendant's own request for a continuance. His motion for this continuance shows that it was for his purposes of locating a missing witness and in order to obtain expert testimony.

Defendant was an active participant in securing the first continuance and the sole participant in securing the second continuance. Both continuances inured to the benefit of defendant and it would stretch credulity to say that the 97 day delay incurred thereby was "occasioned by the state" because absent defendant's participation, the delay would not have occurred. As held in State v. Harris, Missouri Court of Appeals, Eastern District,...