State v. Caffey

SEILER, Presiding Justice

(dissenting).

In affirming the judgment, the majority opinion relies on State v. Caffey (Mo.Sup.) 438 S.W.2d 167. That opinion, it seems to me, points to a different result. In State v. Caffey, supra, the court announced the rule that the constitutional right to speedy trial commences with the filing of the information, There, in a felony case, slightly over three months elapsed from information to trial. This was held not to violate the right to a speedy trial. Here, in a misdemeanor case, where upon conviction the maximum confinement is one year, Sec. 560.161(1), RSMo 1959, V.A.M.S., defendant is held in jail 11 months awaiting trial after the information is filed. It was filed July 14, 1966. Defendant did not get a trial until June 14, 1967. This despite the provisions of Sec. 18(a), Art. I, 1945 Constitution, V.A.M.S., that the accused shall have “a speedy public trial” and of Rule 22.01 that when the defendant is brought before the magistrate in a misdemeanor case, it is the magistrate’s duty “forthwith” to hear the case.

There are other parts of Rule 22 relating to continuances, but none apply to the case before us, where under the facts defendant asked for an immediate trial and did not at any time agree to a continuance. The majority opinion reads one of the answers of Magistrate Stringer at the hearing held in circuit court in the present case, on defendant’s pro se motion in bar of prosecution, as meaning that as of July 19, 1966, defendant wanted only the felony case in which Mr. Walden was appointed as attorney tried at that time. It is true that appointment of counsel was made on July 19, 1966 only in the felony case which eventually reached here as State v. Caffey (Mo.Sup.) 438 S.W.2d 167. The meaning of the answer made by Magistrate Stringer in the record is not entirely clear to me, but the appointment of counsel in State v. Caf-fey, supra, could not have been with the idea of furnishing Caffey a speedy trial in that case while passing the present case with his consent, because, as shown by State v. Caffey, supra, 438 S.W.2d 1. c. 169, Magistrate Stringer did not inform either Mr. Walden or defendant of the appointment until 10 months later and, further, on July 19, 1966, continued the felony charge, without notice to defendant, until May 23, 1967. The fact is, the only case which was set for trial when defendant was arraigned on July 19, 1966, is the case before us. This is shown by what happened on that date — to-wit, after the arraignment, the not guilty plea and the request for appointment of counsel and immediate trial, defendant’s appearance was set for six days later, July 25, 1966, and in default of $500 bond, defendant was committed to the custody of the sheriff. This would be in compliance with Rules 22.02 and 22.03, which pertain to misdemeanor cases in magistrate courts and relate to setting the case for trial, providing for bond, and in default thereof, committing the defendant to jail until the day set for trial. That is what was done with defendant, but then when July 25, 1966 arrived, nothing happened and it was not until June 14, 1967, that the case was actually tried. Therefore, it does not seem to me there is anything connected with the manner in which counsel was appointed in the felony case to support any factual determination that defendant did not want or expect a speedy trial in his misdemeanor case.

The fact that defendant in the case before us did have a speedy trial de novo in circuit court on his appeal from his conviction in magistrate court does not mean he was not entitled to a speedy trial in magistrate court in the first place. If the speedy trial provisions of the constitution and the rules are to mean anything in practice, there must be some direct remedy available when they are violated as they clearly were here by not giving this defendant a trial in magistrate court for 11 months, during which time he was in jail, on a misdemeanor charge where the maximum confinement on conviction could not exceed one year. Any delay beyond 30 to 60 days in reaching trial in a case such as this would seem unnecessary. No excuse appears for delaying 11 months.

It does not seem to me the relief granted in State v. Caffey, supra, where this court ordered this same defendant be given credit on his felony sentence for the time spent in jail awaiting trial, meets the issue before us in the present case. In State v. Caffey, supra, under the court’s holding there was no denial of a speedy trial. Here, where the information had been filed for months with no action, there was, in my opinion, a delay of such length alone as to constitute denial of a speedy trial. If so, such denial of speedy trial remains a fact, no matter what happened in the other case. The only effective remedy is to reverse the judgment on the misdemeanor conviction because of denial of a speedy trial and this I would do. For these reasons I respectfully dissent.