Winder v. State, Nos. 89-KA-00911

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSMITH; HAWKINS; HAWKINS; BANKS; HAWKINS; SULLIVAN; Smith; Banks; McRAE; BANKS; BANKS
Citation640 So.2d 893
PartiesAnthony WINDER v. STATE of Mississippi.
Docket Number89-KA-01174,Nos. 89-KA-00911
Decision Date30 June 1994

Page 893

640 So.2d 893
Anthony WINDER
v.
STATE of Mississippi.
Nos. 89-KA-00911, 89-KA-01174.
Supreme Court of Mississippi.
June 30, 1994.

Mikell Buckley, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Patricia W. Sproat, Columbus, for appellee.

En Banc.

SMITH, Justice, for the Court:

In this appeal from the Circuit Court of Washington County, the only issue of merit is whether there was a violation of Miss.Code Ann. Sec. 99-17-1 (Supp.1989), commonly known as the 270 day rule. The remaining issues are without merit and need not be discussed. We find that there was no violation of the 270 day statute, and the convictions and sentences of Anthony Winder are affirmed.

Winder and co-defendant Johnny Lee Hardy were indicted on July 13, 1988, for the crimes of burglary of an occupied dwelling, conspiracy, and rape. Hardy pled guilty to burglary and conspiracy and was sentenced to ten years for burglary and five years for conspiracy. The State dropped the rape charge against Hardy and he agreed to testify against Winder. Winder was tried on May 24 and 25, 1989, and found guilty of burglary and conspiracy. The jury could not agree on Winder's guilt or innocence on the rape charge, and a mistrial was ordered. Winder was sentenced to fifteen years on the burglary conviction and five years on the conspiracy charge. On July 19 and 20, 1989, Winder was retried on the rape charge, found guilty and sentenced to thirty-five years in prison for the rape. Winder appeals from the judgments in both trials.

Winder, convicted conspirator, burglar and rapist, does not refute the sufficiency of the evidence supporting his convictions, but rather appeals citing the following issue worthy of discussion.

THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE CASE DUE TO THE FAILURE OF THE STATE TO PROSECUTE WITHIN 270 DAYS OF ARRAIGNMENT.

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FACTS

Anthony Winder was arraigned July 22, 1988. He filed a Motion for Speedy Trial on August 31, 1988. His Motion to Dismiss on April 21, 1989, alleged a violation of Miss.Code Ann. Sec. 99-17-1 (Supp.1989), since 273 days had elapsed. The lower court overruled Winder's motion April 26, 1989. Winder's first trial began May 24, 1989. No continuances were requested by Winder or the State, and there were no particularized written continuances for good cause given. Certain factors in the record tolled the statute sufficiently so that the time had not run when the motion to dismiss was heard and when trial commenced.

DISCUSSION

The legislature has failed to specify a remedy when an accused is not afforded a trial within 270 days after arraignment. This Court initially addressed this statute in Payne v. State, 363 So.2d 278 (Miss.1978), holding that a violation required mandatory dismissal with prejudice of the indictment. This position is a much too liberal and lenient interpretation of legislative intent of the statute. Again, in Turner v. State, 383 So.2d 489 (Miss.1980), this Court held that unless there was literal compliance with the statute's mandatory provision, the accused must be discharged. However, in Turner, this Court added that unless "good cause" be shown, and a continuance duly granted by the court, the accused must be tried no later than 270 days after arraignment. See also Mitchel v. State, 572 So.2d 865, 870 (Miss.1990); Moore v. State, 556 So.2d 1031, 1033 (Miss.1990); Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); Lightsey v. State, 493 So.2d 375, 378 (Miss.1986); Nations v. State, 481 So.2d 760, 761 (Miss.1985); Bailey v. State, 463 So.2d 1059, 1061-62 (Miss.1985).

In this case, the record first shows that the statute was tolled for 23 days during plea negotiations, even though the State did not receive a continuance. On August 8, 1988, a plea bargain offer was filed by the State and was not rejected by Winder until August 31, when he filed his demand for a speedy trial. In Reed v. State, 506 So.2d 277 (Miss.1987), the parties entered into plea negotiations. Following a series of offers and counter offers, Reed ultimately withdrew his plea and the trial court immediately set trial for the next available date. The resulting delay was 293 days after Reed's arraignment. Id. at 281. On appeal this Court stated:

In the instant case, the State never sought a continuance throughout the plea negotiations. However, it is equally clear that Reed acquiesced in and initiated much of the plea bargaining that caused the resulting delay. If the defendant is the cause of the delay, he cannot complain thereafter. (cite omitted).

Reed, 506 So.2d at 281.

Additionally, the statute was tolled by a continuance entered on the minutes at the end of the September term of court. This was a single continuance carrying this case over to the next term. The trial court indicated a standing order to carry cases from one term to the next. This type of generalized continuance order has been disapproved previously by this Court. See Vickery v. State, 535 So.2d 1371 (Miss.1988). Yet, this single continuance order in the case at bar tolled the statute an additional 14 days.

The record clearly supports the contention that there was a heavy workload in the prosecutor's office, amounting to approximately 670 cases brought to trial in 1988. The district court trial docket was unquestionably congested. The defense entered no objection to the continuance to the next term in spite of its earlier speedy trial demand. Failure to object is equivalent to acquiescence to this continuance.

This Court held in Williamson v. State, 512 So.2d 868, 877 (Miss.1987): "Where the accused is not tried within 270 days of his arraignment, the state has the burden of establishing good cause for the delay since the accused is under no duty to bring himself to trial." We also held in Williamson that the congested docket, in that particular case, was good cause showing for delay of the trial beyond the 270 day period. An additional warning was given: "However, we do not wish to imply that congested dockets will in every case constitute good cause for delay under the 270 day rule. Because of this, we limit our ruling today to these particular

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facts." Id. In truth and in fact, the same situation exists in the case sub judice and consideration must be given accordingly, the ruling of Williamson notwithstanding. Our ruling is similarly limited to the facts of this particular case.

Winder's case was originally set for trial during the week of February 17, 1989. This case and a companion case with the same defendants were to have been tried successively. Less than 24 hours prior to trial, Winder filed a notice of alibi defense in the companion case which impacted on the State's trial strategy in the case sub judice. Winder also claimed an alibi defense in this case.

The record further indicates that apparently because of icy weather, all cases scheduled for trial that week were cancelled. These days of inclement weather constitute sufficient "good cause" for the rescheduling of any case for trial.

The better method for the State to secure a continuance in Winder's case would have been to obtain a specific order setting out the details mentioned above. Regardless, the motion to dismiss was filed 273 days after arraignment, overruled, and the case tried within 30 days thereafter. The statute was effectively tolled at least 37 days at the time the motion was filed, making the motion premature, as only 236 days had elapsed. The statute was again tolled between the time of the motion to dismiss on April 21, and the hearing on April 26, 1989. An additional 28 days for the time period from the hearing date until the date of trial can be added, making a total of 264 days. Considering the three separate times the statute was tolled, and the reasons therefor, there was no violation of the 270 day rule. Equally important in the case sub judice is the issue of any resulting prejudice to the defendant. Winder alleges none and received none. He was already incarcerated at Parchman Penitentiary for a parole violation of a previous felony conviction, as well as under indictment for another offense and awaiting jury trial during the pendency of this case. Where a defendant is serving a prison term in the state penitentiary or is imprisoned on totally unrelated charges, there is no resulting prejudice based solely on continued incarceration.

CONCLUSION

Winder was duly tried, convicted and sentenced as a burglar, conspirator and rapist. Winder does not dispute that there was sufficient evidence to support these convictions. In arguing that the 270 rule was violated, Winder does not consider the different times in which the statute was tolled. Since the 270 day rule statute was not violated in this case, Winder's convictions and sentences are affirmed.

NO. 89-KA-00911 COUNT I: CONVICTION OF CONSPIRACY AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF BURGLARY OF OCCUPIED DWELLING, AND SENTENCE OF FIFTEEN YEARS (15) IN THE CUSTODY OF MDOC, AFFIRMED. SENTENCE OF COUNT II TO RUN CONSECUTIVE TO COUNT I. BOTH SENTENCES CONSECUTIVE TO ANY OTHER SENTENCES NOW BEING SERVED. NO. 89-KA-01174 CONVICTION OF RAPE AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF MDOC, AFFIRMED.

PRATHER, P.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ., concur.

HAWKINS, C.J., concurs in results only.

HAWKINS, C.J., concurs with a separate written opinion.

SULLIVAN, J., dissents with separate written opinion, joined by McRAE, J.; BANKS, J., joins in part.

BANKS, J., dissents with separate written opinion, joined by DAN M. LEE, P.J.

HAWKINS, Chief Justice, specially concurring:

I concur in affirming Winder's convictions but for a different reason. I would hold that Miss.Code Ann. Sec. 99-17-1 (Supp.1992), embracing the 270-day rule, being a procedural statute has no binding effect upon this Court.

Page 896

Winder and co-defendant Johnny Lee Hardy were...

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16 practice notes
  • Ex parte James
    • United States
    • Supreme Court of Alabama
    • May 31, 2002
    ...retain in [the Supreme Court] ... supervisory power over them...." (quoting Porter v. State, 53 Ga. 236, 238 (1874))); Winder v. State, 640 So.2d 893, 900 (Miss.1994) (Hawkins, J., concurring specially) ("Contrary to many state constitutions which give their supreme courts supervisory power......
  • Mississippi Com'n of Judicial Performance v. Russell, No. 96-CC-00507-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 1997
    ...legal principles do not suggest parallel authority in criminal cases, yet Judge Russell relies on our holding in Winder v. State, 640 So.2d 893 (Miss.1994). In Winder, we held that there was no violation of the 270-day rule where there was good cause shown for delay. Judge Russell argues th......
  • DeLoach v. State, No. 97-KA-00685-SCT.
    • United States
    • Mississippi Supreme Court
    • October 8, 1998
    ...in plea negotiations with the state prior to trial, this cannot be counted against the state in a speedy trial analysis. Winder v. State, 640 So.2d 893, 894 (Miss. 1994) (citing Reed v. State, 506 So.2d 277, 281 (Miss.1987)). It is clear that DeLoach acquiesced in and initiated much of the ......
  • Davis v. State, No. 97-KA-00669-COA.
    • United States
    • Court of Appeals of Mississippi
    • October 12, 1999
    ...if the defendant is serving a sentence on unrelated charges. Johnson v. State, 666 So.2d 784, 791 (Miss.1995) (citing Winder v. State, 640 So.2d 893, 895 (Miss.1994)). ¶ 33. We allude to Dickerson and analogize the Jones County Circuit Court's "holding order" and the State "detainer" discus......
  • Request a trial to view additional results
16 cases
  • Ex parte James
    • United States
    • Supreme Court of Alabama
    • May 31, 2002
    ...retain in [the Supreme Court] ... supervisory power over them...." (quoting Porter v. State, 53 Ga. 236, 238 (1874))); Winder v. State, 640 So.2d 893, 900 (Miss.1994) (Hawkins, J., concurring specially) ("Contrary to many state constitutions which give their supreme courts supervisory power......
  • Mississippi Com'n of Judicial Performance v. Russell, No. 96-CC-00507-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 6, 1997
    ...legal principles do not suggest parallel authority in criminal cases, yet Judge Russell relies on our holding in Winder v. State, 640 So.2d 893 (Miss.1994). In Winder, we held that there was no violation of the 270-day rule where there was good cause shown for delay. Judge Russell argues th......
  • DeLoach v. State, No. 97-KA-00685-SCT.
    • United States
    • Mississippi Supreme Court
    • October 8, 1998
    ...in plea negotiations with the state prior to trial, this cannot be counted against the state in a speedy trial analysis. Winder v. State, 640 So.2d 893, 894 (Miss. 1994) (citing Reed v. State, 506 So.2d 277, 281 (Miss.1987)). It is clear that DeLoach acquiesced in and initiated much of the ......
  • Davis v. State, No. 97-KA-00669-COA.
    • United States
    • Court of Appeals of Mississippi
    • October 12, 1999
    ...if the defendant is serving a sentence on unrelated charges. Johnson v. State, 666 So.2d 784, 791 (Miss.1995) (citing Winder v. State, 640 So.2d 893, 895 (Miss.1994)). ¶ 33. We allude to Dickerson and analogize the Jones County Circuit Court's "holding order" and the State "detainer" discus......
  • Request a trial to view additional results

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