State v. Warren, 49329
| Decision Date | 15 July 1978 |
| Docket Number | No. 49329,49329 |
| Citation | 580 P.2d 1336,224 Kan. 454 |
| Parties | STATE of Kansas, Appellee, v. Therell Bright WARREN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is the obligation of the state, and not of the defendant, to see that an accused who is in custody is provided with a speedy trial in conformity with both the constitutional and the statutory mandates.
2. A defendant has no duty to bring himself to trial; that duty rests upon the state.
3. Delays which are the result of the application or the fault of the defendant are not to be counted in determining whether an accused has been brought to trial within the period prescribed by K.S.A. 1977 Supp. 22-3402.
4. The time between the date on which a defendant files a motion for a psychiatric examination, and the date on which the report of the psychiatrist is received, is chargeable against the defendant, whether the purpose of the examination is to determine competency to stand trial or to support an insanity defense.
5. Where the state fails to bring an accused to trial within the time limits fixed by K.S.A. 1977 Supp. 22-3402, the accused is entitled to be discharged.
Michael S. Sizemore of Speir, Stroberg & Sizemore, Newton, argued the cause and was on brief, for appellant.
James W. Modrall, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him, on brief, for appellee.
This is a direct appeal by the defendant, Therrill Bright Warren, from his conviction of aggravated kidnaping, K.S.A. 21-3421, and his subsequent sentence of life imprisonment.
The determinative issue is whether the trial court erred in failing to discharge the defendant upon his motion pursuant to K.S.A. 1977 Supp. 22-3402, because the defendant did not receive a speedy trial.
The dates pertinent to this decision are as follows: The offense was committed on the evening of June 30, 1976. Warren was arrested on the following day. He was arraigned before the district judge on August 26, 1976. Counsel was appointed; a plea of not guilty was entered; and the defendant requested a jury trial. On September 8, on defendant's motion, the court ordered him committed for a psychiatric examination in order to determine his competency to stand trial pursuant to K.S.A. 1977 Supp. 22-3302. Defendant filed a notice that he would rely on the defense of insanity.
Defendant was examined at the Hertzler Clinic, and a final report of the psychiatrist (in which he concluded that Warren was competent to stand trial), was delivered to the court on October 7. Nothing further occurred until December 6, when the defendant asked that he be examined at the Topeka State Hospital for the purpose of determining his sanity at the time the offense was committed. Under order of the court the defendant was taken to the Topeka State Hospital on December 8; he was returned to Harvey County on that same date. He was again taken to the Topeka State Hospital on December 21, and was returned to Harvey County on the following day. The final report from Topeka State Hospital dated January 7, 1977, was received by the district judge on January 8 or January 10, 1977. On February 2, appointed counsel withdrew and Michael S. Sizemore was appointed to represent the defendant. Mr. Sizemore asked that the matter be continued until February 14, 1977. On that date, the opening day of the February term, the defendant requested a jury trial. On April 8, counsel were notified that a pretrial conference was scheduled for April 13. Mr. Sizemore had a conflict, so he requested that the matter be set over until the week of April 18. Pretrial was held on May 9. On May 12, defendant moved for a dismissal for want of a speedy trial in violation of K.S.A. 1977 Supp. 22-3402. The motion was denied on May 17, and trial commenced June 7, 1977.
K.S.A. 1977 Supp. 22-3402 provides in part as follows:
(a) The defendant is incompetent to stand trial;
Warren was in custody for 285 days from the date of arraignment until the commencement of trial. During that time, the defendant may properly be charged with causing or consenting to delay from September 8 to October 7, a total of 29 days, for the purpose of a competency examination; from December 6, 1976 to January 10, 1977, a total of 35 days, for the purpose of a further psychiatric examination; from February 2 to February 14, 1977, a period of 12 days, a continuance at the request of counsel; and from April 13 to April 18, 1977, a period of 5 days, at the request of counsel. Thus a total of 81 days is chargeable to the defendant.
Delays which are the result of the application or the fault of the defendant are not to be counted in computing the statutory period. State v. Powell, 215 Kan. 624, 527 P.2d 1063 (1974); State v. Pendergrass, 215 Kan. 806, 528 P.2d 1190 (1974); State v. Sherman, 217 Kan. 326, 536 P.2d 1373 (1974); State v. Lewis, 220 Kan. 791, 556 P.2d...
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