State v. Wilson ( 1969 )

TUCKETT, Justice:

The appellant, Grover Edward Wilson, moved the court below for an order dismissing. the information pursuant to the provisions of Sec. 77-65-1, U.C.A.1953. From an adverse ruling the defendant appealed to this court.

In January 1967, the defendant was incarcerated in the Utah State Prison serving a sentence of five years to life for the crime of robbery. On January 27, 1967, a complaint was filed against Mr. Wilson charging him with the crime of forgery. On February 27, 1967, the defendant filed with an authorized agent of the Utah State Prison a request for final disposition of the charge of forgery. Thereafter the defendant waived a preliminary hearing and was bound over to the district court for trial. On April 10, 1967, the defendant was arraigned in the district court and entered a plea of not guilty, and the case was set for trial on June 6, 1967. At the time of the arraignment and the trial setting the defendant made no comment and the only statement of defense counsel was to the effect that he was available to try the case on that day.

On June 6, 1967, when the case was called for trial, the defendant moved for a dismissal on the ground that the case had not been brought on for trial within the 90 days as provided for by Sec. 77-65-1, U.C. A.1953. The court denied the defendant’s motion and he thereafter entered a plea' of guilty. It would appear from the record that the court below was' of the opinion that the defendant, not having made an objection to the trial setting, and not having requested a trial date within the 90-day period, could not contend that the court had lost jurisdiction.

Article I, Section 12, of the Utah Constitution, provides that an accused in a criminal prosecution shall have the right to a speedy public trial by an impartial jury. In 1965, the legislature in implementing that provision of the Constitution adopted Chapter 65 of Title 77, which is entitled “Disposition Of Detainers Against Prisoners.” Section 1(a) of that chapter provides :

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within ninety days after he shall have caused to be delivered to the county attorney of the county in which the indictment, information or complaint is pending 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. * *

Section 1(b) provides that the written notice and request for final disposition may be delivered to the warden, sheriff or other official having custody of him. Section 77-65-2 provides:

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.

Statutes similar to the one above mentioned have been adopted by a number of other states of the union, and the courts of other states have been called upon to construe those statutes. It would appear that the purpose of the statutes is to carry into effect the constitutional guarantee of a speedy trial and to more precisely define what is meant by “speedy trial” as that term is used in the constitutions of the various states.¹ It is apparent that the intent of the legislature was to prevent those charged with enforcement of criminal statrttes from holding over the head of a prisoner undisposed of charges against him. -It would appear' that the statute was intended to provide for the trial of charges -against an accused while witnesses are •available and their memories fresh.

The legislature has expressed its intent in simple and concise language which needs no construction by the court. The case before us clearly falls within-the provisions of the statutes above referred to .and we need only comment about one aspect of the case. We are of the opinion that the defendant by remaining silent or by failing to request an earlier setting did not lose the protection of the statute. It .is apparent that the legislature intended to place the burden of complying with the statute upon the prosecutor. The State’s attorney, within the 90-day period, for good cause could have moved for a continuance beyond the period proscribed.

It appears that the court no longer has jurisdiction of the charge made against the defendant and the same should be dismissed with prejudice. It is so ordered.

CALLISTER and ELLETT, JJ., concur.

1 . People v. Masselli, 13 N.Y.2d 1, 240 N. Y.S.2d 976, 191 N.E.2d 457; State v. Mason, 90 N.J.Super. 464, 218 A.2d 158; State v. Goetz, 187 Kan. 117, 353 P.2d 816; State v. Chirra, 79 N.J.Super. 270, 191 A.2d 308.