Despain v. State

THOMAS, URBIGKIT, ly entry plea, DeSpain Before MACY after of the nolo was JJ., GRANT, GOLDEN, and Wyoming returned to State Penitentia- Judge. District ry serving to resume incomplete penitentiary sentence.1 URBIGKIT, Justice. appeal for issue his first is embraced sequential criminal These two convictions deprivation right in a a constitutional rights present considering questions three aspect a sentence as an a speedy time from arrest date to a trial: requirement in found both state and prosecution); (delay of trial in time from federal constitutions. The for delay cause filing (delay to date of trial information in is intrinsic to the other trial); in district court in sen- which, charges following conviction, plea entry guilty (delay after of a tence in presented also appeal are in the second sentencing). complaint on his of a based denied affirm, finding procedural no error of We dimension. constitutional days entry plea Two after his nolo 6, 1987, April On with more than five escape Farm charge, DeSpain, Honor 1982, years year served on a ten-to-twenty 4, September 1987, conjunction on in with sentence, aggravated robbery appellant really prisoner, try another did to escape DeSpain (DeSpain) Robert W. classi- was County jail Lander, from the Fremont position a fied to “trustee” and transferred Wyoming. planned, This but unsuccessful Wyoming Penitentiary State nighttime an effort involved on assault two Rawlins, Wyoming to Wyoming State jailers a razor with blade melted into the Riverton, Wyoming. Honor Farm in A of a Subsequently, end toothbrush. DeS- later, company month and a in the half charged pain escape, aggravated was with prisoners, away night other he walked assault, deadly weap- and manufacture of a bars, for visit a to town and its available bodily on with intent to inflict harm. The returning voluntarily morning. before He charges initiation of these criminal oc- midnight furlough, colloqui- had taken a by completion curred of a criminal com- Unfortunately, al terms. other one plaint September and warrant dated prisoners returned, also apparently who processed by upon was service brought intoxicating back beverages into at Wyoming Penitentiary him the on Thus, facility. DeSpain the confinement pre- 1987. of a October After waiver escape was arrested for the offense of liminary hearing on December detention, 6-5-206(a)(i), from official W.S. DeSpain initially was scheduled for ar- court, charged for he county which was raignment January in district on preliminary hearing, arraigned July waived delayed by which session was weath- court, district and first entered er, completed January 20, on then plea a guilty. September not On pleas guilty He 1988. entered not on all 1987, he changed plea to nolo conten- charges arising from the Fremont A pre-sentence investigation report dere. County jail break. Trial was scheduled for ordered, completed which was March 1988 and then continued February filed with the on 1988. April on district court be held changes Two in counsel on occurred and scheduling for the because conflict 25, 1988, April hearing a sentence was held prosecuting attorney subpoenaed who was DeSpain given penitentiary in which appear as a federal court. incomplete witness sentence consecutive Additionally, DeSpain’s appointed prior term the sen- on offense awith new tence one and a half to counsel withdrew at the end of December years. three Appeal from that sentence is taken. and other counsel from the staff of the Shórt- 15, 1987, Technically, September penitentiary 1. back to where suitable more (on recognizance) "released security O.R.” his own was available. for the so offense that he would be taken subsequently jailers, DeSpain vated assault on the had public office was defender’s probation him. in 1976 appointed for violated and had also escape in committed another In pretrial confer- early March parole Oregon, after second he was in attend- held the accused ence was given year probation a three for a sentence arrangements a sched- ance to settle then, burglary in Montana in viola Later, on March March trial. uled responsibility, in tion of sentenced subpoe- 1988, following of the the issuance Gillette, Wyoming in 1982 for most the the trial prosecuting attorney, na offense, aggravated robbery. recent Offi the concurrence rescheduled with date was penitentiary cers at the were entitled The trial itself was counsel. of defense flexibility arranging in travel schedules for hearing with on conjunction in a scheduled in appearance Lander in of consideration had been made motions various which unappealing confinement Jus arising from record. on the second offense escape appearance tification for caused County jail and motion the Fremont offense, delay in attacking clearly contended first and road conditions weather Farm, sentencing. two-day appropriate. Campbell v. 26 Ark. Honor jury resulted verdict of April App. Factual S.W.2d attempted escape on and appeals ly, convictions these are also confined charges acquittal assault aggravated guilt reliable defenses and absence deadly weapon of a the manufacture pri- on that continued confinement was on the result, DeSpain charge. As a was further leaving DeSpain opportunity no or sentence eight-to-ten years to terms of on sentenced serving commence the more current sen escape eight-to-ten attempted years tences. assault, consecutive to each aggravated to all other and consecutive other sentences SPEEDY SENTENCING prior escape sen- included both the inquiry This first addresses whether incomplete the still

tence and required pen- court should have district from which the initial had occurred. county or the sher- itentiary staff to return Appeal this second offense go get DeSpain sentenc- iff’s office for generally presenting also taken issues following receipt of ing at an earlier date date speedy trial from date of arrest to mid- investigation report in presentence filing trial and trial from justification find for February. We not do date district court to the information requirement avoid violation under Rule 120-day of trial —the rule timely sentence rule.2 Wyoming Rules for the District Courts Uniform Wyoming. the State Actually, at time of the March DeSpain in at- conference held with particularized for this concept If some tendance, postpone- anticipated no one it DeS- recognition, deserves is that case engendered by the federal court ment later history justified transfer pain’s care attorney. prosecuting for conflict hearings and from Rawlins to Lander telephone conference the mid-March When sen- Age twenty-six counsel of the district session ten-to-twenty tencing, continuing to serve continuance, May held to discuss aggra- was Gillette year sentence for the 1982 anticipated, openings was first but robbery, present date with the vated faced permitted the schedule the district court charges escape, the second two setting April.3 aggra- weapons earlier complicated use of appeals in- DeSpain’s chronology 33(a)(1) part: for these provides "Sentence W.R.Cr.P. 3. delay.” following: imposed clude the without unreasonable shall A speedy sentencing appears review preme found in Pollard v. United impression prior this court. All 1 L.Ed. Wyoming cases involved the more defined (1957), 2d 393 court, where that in consider- subject trials. The one ation of 32(a), F.R.Cr.P. utilized a constitu- subject by of this the United States Su- tional speedy trial thesis for this issue ex- among An ambivalence courts has identical fashion F.R.Cr. amination. 33(a)(1) 32(a), provides developed theory upon as to the P. W.R.Cr.P. which imposed without unrea- delayed sentencing shall validity of is tested. “[s]entence express ter- delay.” sonable and, approaches exist Three defined trial the stat- minology, applies only to cases, approaches two or more of the some any period period is unrelated ed time analysis in may be utilized for the same during normally pre- which after subject delayed Apparently, case. investigation report is obtained sentence de- sentencing has broader facets and less imposed. Observedly, sentence before parameters speedy trial fined than does the Wyoming law judge the trial criminal concepts. no system has minimal or control over precept distinctively analyzed This completion of that required for the Appeals New York in by the Court report prepared the Probation recognizing: Department, an executive and Parole distinctions, perceptible how- There are agency. branch ever, concepts between ad- States The United timely sentencing. requirement of concern in dressed Speedy requirements upon focus Pollard, at 485-86 prompt need for a trial so that witnesses assumptively: available, possible exoneration is are relate to Petitioner’s other contentions public’s interest in deliber- swift and rights of violations of constitutional prosecution de- ate is fulfilled. After a process, signifi speedy trial and due convicted, the focus to fendant is shifts departure proper standards of cant eligi- right appeal, his the defendant’s administration. It is not criminal law bility of sen- power pardon for and commutation a has to enter disputed that succeeding tence, and, where a if retrial neces- sentence at a term a becomes im previously danger may void sentence had been sary, the that witnesses Aderhold, posed. v. 288 U.S. 206 Miller significance in the equal Of unavailable. 325, (1933)]; cf. 77 L.Ed. 702 S.Ct. sentencing public [53 is the timely need for 160, 166 330 U.S. Bozza United pun- prompt and certain perception that 648, (1947)]. 818 S.Ct. 91 L.Ed. [67 imposed upon a defen- has been ishment guilty allow the To hold otherwise would legal- guilty, uninfluenced dant found through legal a punishment Thus, we ly irrelevant considerations. accident. requiring prompt have rested our rule argues 1954 sen- Petitioner inferring sentencing grounds, on broader right tence violated under Sixth inevitably prejudice delay results a of the Constitution to Amendment to the defendant. position He takes this “speedy” trial. Drake, 474 N.Y. People 61 N.Y.2d remained, assumption that the case (1984). 379 462 N.E.2d S.2d above, uncompleted af- held as we have approach, The sometimes buttressed will assume ar- ter the 1952 trial. We rules, is a by statutes or an evaluation part of trial guendo that sentence is of the United States Sixth Amendment purposes of the Sixth Amendment. right and state constitutional Constitution is of course not The time for sentence concept is found speedy a trial where the 32(a) judge. the will in the post-guilt determinations to include re- Procedure Federal Rules Criminal entry of a sentence. States United imposition of sentence “with- quires (6th Reese, Cir.1977); 1246 United delay.” 568 F.2d out unreasonable (5th Campbell, 531 F.2d 1333 States v. delay completing prose- Whether denied, 98 Cir.1976), cert. 434 U.S. as here occurred amounts cution such (1977); 164, 54 L.Ed.2d 121 Juarez- S.Ct. deprivation rights unconstitutional an (5th States, 496 F.2d 190 v. United Casares depends upon the circumstances. [Foot- Tortorello, Cir.1974); 393 emphasis original.] United States v. note omitted 82 (2nd Cir.1968); State, (8th Cir.), denied,

F.2d Gonzales cert. 400 U.S. 1978). (Alaska 582 P.2d 630 91 S.Ct. 27 L.Ed.2d 111 Pollard, 481): (citing 352 U.S. thesis, differently phrased A second specific rejection often Sixth unnecessary is It for us to make concept, speedy Amendment is decision at this time as to whether an by examining right presented as a due delay sentencing unreasonable consti- process and Fourteenth Amendment of infringement jurisdictional tutes an of a analysis. United States Constitution These right. or constitutional We hold that end cases the Sixth Amendment been, there has not under constitutional requirement at the date of trial and standards, any “purposeful” “oppres- process then invoke the due clause particular sive” in this case. question the va Fourteenth Amendment comprehensive Erbe, analysis The lidity imposed a sentence after an inordi A.2d 640 a similar approach follows to is passage Duncan, nate of time. State v. analytical sue resolution. The ap same (La.1981); Johnson, State v. So.2d proach was found in v. Cunning (La.1978); Milson, State v. So.2d ham, (Del.Super.1979), 405 A.2d (La.App.1984); 458 So.2d 1037 Erbe v. although reversed and remanded on other State, (1975); Md.App. 336 A.2d 129 grounds, (Del.1980): A.2d (Okla.), Page, Jackson v. cert. holding A guaran- that the denied, 17 L.Ed. S.Ct. I, tees Article Section of7 the Dela- 2d 82 But see Lee v. ware Constitution and the 6th Amend- (Fla.App.1986); Drake, So.2d 1202 State v. ment of encompass the U.S. Constitution (La.1977); 259 N.W.2d 862 and Erbe v. right not neces- (1976), 276 Md. 350 A.2d 640 sary to sustain the result here. As de- approach. multifaceted out, points fendant an unreasonable de- theory history third of an older es lay is a violation of due sentially presents in non-constitutional process, “justice delayed justice jurisdic an terms a total loss of * * * denied.” The “without unreason- tion the district court if to sentence delay” provision able of Criminal Rule improperly delayed. scope of Within the 32(a) implements this constitutional stan- cases, these the conviction is valid but no Thus, regardless dard. of application the imposed. concept sentence can be This speedy of right, delay a sen- early was first noted in Michigan case tencing which is unreasonable violates of People Reilly, v. 53 Mich. 18 N.W. deprives the Rule and the defendant of (1884) dispositively applied 849 in Peo process due of law. ple Turner, Mich.App. 92 285 N.W. (1979). 2d approach A similar Within the factual of this Nahas, (10th taken Zerbst v. 67 F.2d 742 case, occur, delay undue did not see United Cir.1933); People, Grundel v. 33 Colo. Pruitt, (4th States F.2d 700 Cir. (1905); Jones, People P. 1022 Ill. 1965), harm, damage, and no disadvantage App.3d (1972); 282 N.E.2d 248 prejudice was shown from the time the ex rel. Sapp, Dawson v. 87 Kan. 125 presentence investigation report was avail (1912); P. City Rouge Baton Bour of able to the date that pro sentence was geois, (La.1980); 380 So.2d 63 and Brown Consequently, nounced. this court will de (Okla. ing City, v. Oklahoma adopt cline time to or exclude 1972). Aderhold, Cf. Miller v. 288 speedy the theories as to sentencing. Fur 77 L.Ed. 702 thermore, time factors evidenced here can approach,

A fourth which is the one not compared be to delay extended cases adopt case, we for this declines apply to justified. where remedial action was See single theory Drake, 862; because there was no unrea Bourgeois, N.W.2d sentencing delay. 63; principle Milson, sonable This is So.2d 458 So.2d four stated Brooks v. Erbe, United 423 F.2d years; one-half 350 A.2d 640. opera- the time which occurred after an practical consideration informa- system, find tion filed in district court justice delivery we until tion DeSpain here. His Obvious- itself was conducted. last contention no cause to relieve law, Wyoming speedy the district trial is ly, under violated constructed with- during provides: jurisdiction sentence did not lose unrealistic or period. No unrea- pending (a) responsibility It is the of court and elapsed in the nature of time had sonable person charged counsel to insure each jurisdiction. No due theory loss with crime a discerned, lacking disaffinity process (b) charge brought A shall criminal be of Rule to this application days following trial within delay realistically the structure of inquiry, filing of information or indictment. challenge no to violation of a con- presents (c) following periods The shall be ex- right.4 recog- speedy We stitutional computing cluded in the time for trial: principles nize that fundamental fairness (1) proceedings All related process the due clause dictated deficiency mental illness or of the de- prohibit inordinate Fourteenth Amendment fendant. post-conviction proceedings such (2) Proceedings charge. on another Cunningham, 405 A.2d sentencing, 706; as (3) Delay granted by pur- the court Duncan, 297; Browning, So.2d (d). suant Section 241; concept as confirmed our P.2d Juarez-Casares, (4) rule, 33(a). The time between the dismissal W.R.Cr.P. Cf. refiling nothing charge. here 496 F.2d 190. We find same rule vio- evidence either a constitutional or (5) Delay occasioned defendant’s Expeditious disposition under the lation. change application of counsel or there- practical circumstances constitutes suitable for. sentencing. responsiveness (d) may granted Continuances as 1246; Brooks, Reese, 423 F.2d 568 F.2d follows: Gonzales, Thus, P.2d 630. 1149. Cf. (1) sup- On motion of defendant finding no violation ported by affidavit defendant and right, DeSpain’s first sentence for defendant’s counsel. affirmed. prosecuting On motion of the at- torney if: or the court TRIAL SPEEDY (i) expressly The defendant con- com- presents two differentiated sents; or discussing appellate issue plaints (ii) state’s evidence is unavail- following the convictions speedy trial from prosecution exercised able and the has County jail attempted Fremont break. or diligence; due He the time from arrest to first attacks (iii) due administra- Required trial, he to extend not from the which tries justice and the defendant will tion penitentiary, at the but pro forma arrest prejudiced. substantially not be jail from time the unsuccessful that possible (e) Upon receiving notice of his re-confinement break was ended with writing delay the defendant shall show Thereafter, complains of he de- security. delay may prejudice his defense. how to lay penitentiary Fre- return from is (f) If the defendant unavailable County setting of mont for the a bond is Second, presence any proceeding which his hearing. he contests preliminary arguments DeSpain usual cases which premises speedy likewise cites the 4. The State 514, 354, Pollard, Wingo, apply U.S. 77 S.Ct. 481 for on a Barker v. 407 352 U.S. 2182, balancing authority ad hoc sentencing concept gains L.Ed.2d 101 33 ap- test. This is the constitutional subject speedy sen- the more confined from plication, does not and the State’s discussion jurisdiction becomes where references tence separately analyze cases within the different questioned. by principles are used different courts. 84

required, period begin the time Apparently shall immediately,. almost being upon anew defendant’s and, available. was returned to the penitentiary with month, the criminal complaint was argument DeSpain’s is intermixed may filed. Whatever have been his circum only applies proceedings 204 since Rule during period stance in considering court, although in district is the rule cited either that being he was held for sentenc authority contesting in his brief as de ing on the from the Honor lay from the time that he could have been Farm or for on prior service 1982 term arrested for the offense to the time when incarceration, being he was not held for he was bound over the district court for trial on the County jail Fremont escape as appearance arraignment before the dis a third causing confinement event. State judge. precedent trict Our in Caton v. L’Italien, 363 N.W.2d (Minn.App. 490 (Wyo.1985) 709 1260 P.2d and the 1985), review denied 3/26/85. itself, text Rule 204 make clear that the only parameters apply time actions Nothing in the record reflects a reason following of the district court the time why the complaint and warrant were not felony from information to the date of trial. served at the penitentiary until October pre-indictment distinction between de likely but it inwas accord with sched- lay post-indictment delay results from uling arrangements for return to Fremont interpretation of the Sixth Amendment County since, November he Supreme the United States Court in brought appear county back to holding pre-indictment delay that the ir appearance set an complete bond and application relevant to of the Sixth Amend arrangements hearing. for a preliminary indictment, Only filing ment. information If we were to derive concern about the triggers application. restraint arrest its delay in penitentiary arrest Bartnes, (Mont. State v. 764 P.2d 1271 preliminary hearing scheduled in 1988). Any pre-charging delay only county Riverton, it would real- be tested a Fourteenth Amendment re istically be absolved his execution of a MacDonald, view. United States 456 preliminary hearing waiver of which oc- U.S. S.Ct. L.Ed.2d 696 curred on concurrently December (1982); Sherlock, United States F.2d request with his days of two earlier that (9th Cir.1989); Ross v. United appointed counsel withdraw. A consid- (D.C.Cir.1965); 349 F.2d 210 Ho totality eration of the of the circumstances ward, Wash.App. 756 P.2d 1324 for process review, a due including contin- (1988), 3/7/89; Feulner, review denied offense, prior ued incarceration for a travel Delays Pre-Arrest and the Right requirements, ap- seasonal weather and Ross, Speedy Apologia Arrest: Pro Vita pearance scheduling, pro- reveals no due (1969); Note, 11 Ariz.L.Rev. 770 Pre-Ar- cess violation of the constitutional test in Delay: rest Evolving Due-Process Stan pre-arraignment, arrest ap- and first court dards, (1968); Project, N.Y.U.L.Rev. 722 pearance. Heinrich v. Fourteenth Annual Review Criminal (Wyo.1981); Lovasco, United States v. Procedure: United States S.Ct. L.Ed.2d 1983-1984, Appeals Courts 73 Geo. reh’g denied, S.Ct. (1984); Project, L.J. Thirteenth (1977); L.Ed.2d 164 United States v. Mar Annual Review Criminal Procedure: of ion, 307, 455, 404 U.S. 92 S.Ct. 30 L.Ed.2d United States Court and Courts (1971); Note, supra, 468 43 N.Y.U.L.Rev. Appeals 1982-1983, 249, 72 L.J. Geo. 457 of State, 722. Cf. Cherniwchan v. 594 P.2d (1983). cases, (Wyo.1979). 464 pre-charg- these

Considering DeSpain ing delay that was by process, serv is tested a due Four ing his sentence for a disassociated of teenth analysis; Amendment initi arrest fense, the time line of events seems neither ates the Sixth Wyo. Amendment and the Const, oppressive extraordinary. Septem 1, nor inquiry filing On 10 art. § 4,1987, attempted ber the appropriates justifi- occurred. district court then the

85 arraignment signed January of 204 a basic der for was limitation Rule as cation and 7, 13, 1988, January for arraign- 1988 for trial. 120-day criteria ment, postponed which was thereafter for of time and occurrence Reasonableness days request personnel seven from incarceration in the state related are penitentiary because road conditions consequent requirement penitentiary driving DeSpain were unsuitable for Fre- County to Fremont back move Campbell, County. mont See 761 S.W.2d court, county pre- appearance in for initial arraignment, 613. Immediately after Janu- held, if hearing, arraignment liminary 1988, ary 20, trial was scheduled for March court, Although finally district 21,1988, clearly within the Rule the district the information filed period 204 of 120 days after the start of the record for the coun- prematurely, court any period jurisdiction. of district court appearance and ty court demonstrates rejection There are two definitive bases for hearing delayed preliminary were waiver of of the attack on trial March to request at the by counsel withdrawal April necessity for without exhaustive arrangement arraign- DeSpain. for Early weighing against 204 Rule the standards then and we find noth- ment was scheduled of federal constitutional criteria. Barker ing in from the date of issuance the events 514, 2182, Wingo, v. 407 U.S. 33 warrant, 28, 1987; September of the arrest (1972), 101 its L.Ed.2d multitude of exercise, 30, 1987 service its November Wheaton, v. State progeny.5 528 A.2d warrant; appearance county of the (R.I.1987); Topical Surveys, 22 1109 Suf- court, 30, Riverton, Wy- 1987 in November (1988). folk 451 See also U.L.Rev. oming; preliminary hearing, De- waiver Faces State McCabe, Four Constitu- 15, 1987; or initial scheduled ar- cember Separation Challenges Powers: tional January raignment in district court for Speedy Disposition Speedy Trial and January held as rescheduled and Provisions, (1989). Temp.L.Rev. 62 177 1988; any provide support for DeS- that First, subpoena prosecutor speedy trial consti- pain’s pre-arraignment for proper cause a reasonable continu pro- pre-arrest For the due tutional attack. date, at the discretion of ance trial through inquiry events to district cess judge jus in administration of the arraignment which initiate the Sixth 204(d)(2)(iii). delivery system. tice Rule Const, Wyo. art. Amendment § Furthermore, agreement DeSpain’s at evaluation, delay is not speedy trial undue for continuance constitutes torney State, Phillips v. 597 P.2d demonstrable. time for for this additional waiver (Wyo.1979); Dillingham v. United an complaint as event S.Ct. L.Ed. 204(e). falls the criteria within Ewell, v. (1975); United States 2d 205 State, (Fla.App. Smith v. So.2d 15 L.Ed.2d 627 S.Ct. Jones, 1986); 310 N.C. State (1984). Acceptable continuanc S.E.2d 529 argu DeSpain’s do find Nor we es time convenience reasonable adding the claim of de improved ments appropriate are extend counsel It with Rule 204. does lay conjunction speedy trial limitations within con occur really change not the context responsibility of the trial court. Cf. tinued date for com (Wyo.1977); rence the initiation Hurst whether P.2d (Ind. date premature Williams putation starts with 533 N.E.2d Feather, information, Decem and Black filing 1989); the district (S.D.1978). an To or the date that order was establish ber N.W.2d county filed of trial constituted postponement court and entered violation, must defendant binding DeSpain over the district court demonstrating that the An or- burden of 1987. meet a trial on December stand fashion, 2,971 been cited. can found in some Approximately cases has, in courts where Barker federal and state approve subsequent trial court’s decision to sentence, the re- clearly consecutive date either an scheduled abuse of dis- proven. not good cretion or a lack of cause aas matter Consequently, both convictions and re- Toney, of law. Md. 553 sulting sentences are affirmed. (1989). DeSpain A.2d did not meet this burden. GOLDEN, J., special filed Consequently, we find that the schedule THOMAS, concurrence with which J. is completely compli

which was followed in GRANT, Judge, joined. and District the speedy ance with court rule for a schedule, Having met this GOLDEN, constitution Justice, specially requirements have presumptively al also concurring, THOMAS, Justice, in which met, Caton, been 709 P.2d in absence GRANT, Judge, join. and District proven prejudice, clearly which is not agree I portion with that of the majority Finding compliance shown. with rule opinion “Speedy Sentencing” entitled by determination that the district court part result in achieved of the limiting established a sufficiently time majority opinion “Speedy entitled Trial.” schedule, comprehensive no in inquiry con With part reference to this latter design pursued stitutional such as has been opinion, however, I agree do not that this in this court’s earlier decisions and as ad speedy is, court’s or should by dressed the United States be, upon justification based “the and limita- Barker, in tion of Rule Uniform Rules for the large and a number other current Courts, 120-day District as a basic criteria decisions, required. is See Estrada v. speedy trial.” State, (Wyo.1980). Applica 611 P.2d 850 In adopted this court expressly balancing tion factors becomes neces four-part balancing established, test ex sary only if delay requiring a sufficient plained applied Wingo, Barker v. in Tageant explanation factual exists. State, S.Ct. 33 L.Ed.2d 101 Whea (Wyo.1984); 683 P.2d 667 State, ton, Coscov. See Carisio, 528 A.2d 503 P.2d 1109. Cf. State v. (Me.1988), (Wyo.1972). Again, 552 A.2d 23 in sixteen months this court de gives lay faithfully rise presumption applied balancing to a that such a test delay unnecessary. is Cherniwchan (Wyo. 594 P.2d 464 1979),where the court found the defendant conclusion, (1) we determine that an wronged had but delay been excessive delay undue on the first es- wronged not ain constitutional sense. A cape from the Honor Farm not demon- year later this court once faithfully more circumstances; (2) strable under these applied the balancing test in Estrada v. between the commission second of- State, (Wyo.1980). Again, P.2d 850 arising attempted fense from the Fremont in Robinson v. County jail escape and the date of actual (Wyo.1981), applied this balancing arrest is not countable on Sixth “previously adopted jurisdiction test in this Amendment inquiry and no as the means which a trial claim equal protection process or due impedance be judged.” Significant should Id. at 171. DeSpain; (3) has been demonstrated ly, September the court observed that on time from arrest not sufficiently 14, 1979, Wyoming extended to even create Judicial Conference presumption adopted present Rule requiring the forerunner of exploration; substantive Although Estrada fairly the schedule followed was decided rule, completely adoption within the time the rule limitations after provides of Rule “was not an which issue that case and not rebuttable presumption of compliance constitutional considered the decision.” Robinson, extraordinary absence of 627 P.2d at 171. In Robinson demonstrable was, prejudice specifically this situation of the criminal defendant asserted continued an service of earlier sentence and denial trial was in viola- ancing outright did not it rejected that test and abandon This court 22. tion of Rule rejected the rule’s application of in favor of the earlier strict time and assertion particu- Id. at 172. present of Rule absolute deadline. limitations 204.

lar, said: this court majority of If a this wants modi- approve disap- does not This court application straightforward fy a * * *. The court rules prove district balancing by making test Uniform Barker by22 Con- adoption of Rule the Judicial mandatory District Court Rule guidelines obviously to set ference sense, expressly it should constitutional dispo- encourage prompt and motivate including long line cases overrule Ca- criminal cases and avoid sition tón, say so. Oth- Robinson Cook respect violation with constitutional erwise, court’s this ** *. requirements speedy trial [NJo justify to impliedly has muddled cases been provided by dismissal sanction plurality opinion in seems to be a what provide To so would have caused rule. Phillips Harvey. jurisprudence Sound 45(b), Rule inconsistent with it to be clearly control- requires that we enunciate by defining “unnecessary,” W.R.Cr.P. majority opinions of ling law. Previous decided must be this court has posi- conflict a newer this court which on a basis follow- determined case-to-case than over- tion should be overruled rather set the tests out ing standards and Witkin, Ap- B. Manual On whelmed. See accordingly adoption Its Estrada. (1977) pellate Opinions 101 at 195 fixing an absolute § admirable but the 22(d), Court, Superior Rules (referencing v. deadline Bennett Uniform District Courts the State 21 P.2d 218 Cal. with, super- Wyoming was in J., I (Zangdon, specially concurring)). sus- conflict by Estrada. seded and pect expressly overrule that the votes modified added). Catón, and Cook this case (emphasis 171-72 Id. at Robinson simply do not exist. Robinson, this court A few after months in- claim another considered therefore, concur, in the specially I State, 22 in v. 631 P.2d voking Rule Cook opinion portion of this be- “speedy trial” case, (Wyo.1981). the criminal In that cause, and often- the well-established under provided that Rule contended defendant balancing is the test which law applied mandatory for a guidance the exclusive speedy trial violation jurisdiction, no this argu- Rejecting speedy-trial action. occurred. ment, rejected again expressly 22’s time limi- application of Rule the strict balancing test

tations and embraced 10. Id. at

from Barker. faithfully apply This court continued State, v. balancing Sodergren test State, Binger v. (Wyo.1986); 715 P.2d 170 HARVEY, Jetty Appellant Lee State, (Wyo.1986); 712 P.2d 349 Caton (Defendant), Tageant v. (Wyo.1985); 709 P.2d State, (Wyo.1984); Grable v. P.2d State, (Wyo.1982); Heinrich P.2d Wyoming, The STATE State, (Wyo.1981). P.2d (Plaintiff). Appellee majori unexplainably, the Curiously and No. 87-274. the two most opinion says nothing about ty Wyoming. Supreme Court by this court which recent cases decided I balancing applied. refer to test 5,May 1989. (Wyo.1989) Harvey Rehearing June Denied (Wyo. Phillips v. 774 P.2d 1989). Although most recent these two balancing two test drew

applications

dissents, applied the least the court bal-

Case Details

Case Name: Despain v. State

Court Name: Wyoming Supreme Court

Date Published: May 5, 1989

Citation: 774 P.2d 77

Docket Number: 88-172, 88-196

Court Abbreviation: Wyo.