State v. Willingham , 13 Or. App. 504 ( 1973 )

510 P.2d 1339 (1973)

STATE of Oregon, Appellant,
v.
Jack Wayne WILLINGHAM, Respondent.

Court of Appeals of Oregon.

Submitted on Record and Brief June 4, 1973. Decided June 18, 1973.

Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem, for appellant.

No appearance for respondent.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

Submitted on Record and Appellant's Brief June 4, 1973.

PER CURIAM.

The state appeals from an order dismissing a second degree assault indictment against defendant. The assault allegedly occurred on March 4, 1972, indictment was returned on March 22, and arrest warrant concurrently issued. Defendant was arrested on October 6, 1972, never having previously known that he was charged with anything, although a policeman had talked with him on the night of the incident. The police had defendant's address at all times. No excuse is given for the six and one-half month delay in serving the warrant. It was attributable to pure negligence.

After hearing evidence on defendant's motion to dismiss for lack of speedy trial, the judge said:

"* * * I think any delay at all beyond the usual length of time we attempt to dispose of cases, tends to impair * * *. In this particular case * * * there is unexplained, unnecessary delay. It is, I think, prejudicial * * *."

In the formal written findings and conclusions he said:

"While defendant showed no substantial actual prejudice * * * and while the length of the delay * * * was not so prolonged as to permit a legal presumption of prejudice to the defendant's defense * * *"

the failures of the state caused an unreasonable delay calling for the dismissal.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors to consider in determining whether delays by prosecution violate speedy trial requirements were set out. The court noted that while intentional delay calculated to prejudice a defense would weigh heavily against the prosecution, that negligence not culpable in nature should nevertheless also be considered. 407 U.S. at 531. 92 S.Ct. 2182. See also State v. Serrell, 96 Or. Adv.Sh. 1530, 507 P.2d 1405 (1973).

The trial court did find defendant was prejudiced, albeit not seriously, in the case at bar. Dismissal is a drastic prophylactic and to be used only sparingly. However, considering the serious negligence of the police in delaying the service of the warrant and this finding of some prejudice, although not substantial, we do not think the trial court order should be reversed.

Affirmed.