State v. Velasquez, 17464
| Decision Date | 08 January 1982 |
| Docket Number | No. 17464,17464 |
| Citation | 641 P.2d 115 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Ernest VELASQUEZ, Defendant and Appellant. |
| Court | Utah Supreme Court |
Lynn R. Brown, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant was arrested on December 17, 1979, and charged with aggravated burglary and aggravated robbery. On July 16, 1980, having been committed to the Utah State Prison for an unrelated offense, he filed a request for disposition of all charges pending against him, pursuant to U.C.A., 1953, 77-65-1(a) (since repealed). On November 12, 1980, defendant was tried and convicted. He appeals on the ground that the trial court was without jurisdiction by reason of the fact that his trial was not conducted within 90 days of his request for disposition of all charges pending against him.
U.C.A., 1953, 77-65-1(a) provided in part:
Whenever ... there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within 90 days after he shall have caused to be delivered to the county attorney ... 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.)
U.C.A., 1953, 77-65-2 provided:
In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
At the time defendant filed his request for disposition, the above statutes had been repealed by the present U.C.A., 1953, 77-29-1, which took effect on July 1, 1980. The current statute substitutes a 120-day period for the former 90-day period during which a prisoner was required to be tried. Defendant's trial, which took place 119 days after his request for disposition, did meet the time limitation of this current statute. However, because the earlier statute was in force at the time of his arrest, defendant claims that "justice and fairness" and the ex post facto rule require that he be given the benefit of the former 90-day limitation.
Even assuming that defendant had a right to be tried under the former 90-day statute, however, the state did not violate this right by trying him on November 12. Defendant's trial date was originally scheduled for August 12, less than one month after his request for disposition. Upon defendant's own motion, the court granted a continuance until September 23. Thus, defendant himself was responsible for delaying the trial for at least 42 days. The record does not adequately reflect why the trial date was again postponed to November 12. If good cause was shown for this continuance, the trial court had express authority to allow it...
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State v. Pedockie, 20030222-CA.
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