Flores v. StateFlores v. State
Raul Rolando FLORES
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*812 Merrida P. Coxwell, Jr., Randy A. Clark, Stanfield Carmody & Coxwell, Jackson, for appellant.
Mikе C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Ass't Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and PRATHER and BANKS, JJ.
BANKS, Justice, for the Court:
I.
This appeal comes from the Circuit Court of Hinds County which convicted the appellant Raul Rolando Flores and his co-defendant James Ray VanEtten of conspiracy to distribute more than one kilogram of marijuana and sentenced each to fifteen years imprisonment. Flores assigns the following errors:
I. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROVIDE A SPEEDY TRIAL.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE PROSECUTOR TO MAKE REPEATED REFERENCE TO THE DEFENDANT'S FAILURE TO CALL A WITNESS IN HIS OWN BEHALF.
This case is controlled by and disposed of by our decision in Flores' co-defendant's аppeal, Flores (VanEtten) v. State[1],
II.
The facts of the crime charged here are essentially the same as those stated in Flores (VanEtten) v. State and will not be repeated here. We go directly to the dispositive issue.
III.
To illustrate the speedy trial violation a chronology of events as applicable to Flores together with constitutional and statutory time calculations is shown below.
Constitutional Statutory
Event Date No. of Days No. of Days
TIME
ARREST 05/06/84 ATTACHES 0
Indictment 06/19/84 44 0
ARRAIGNMENT 06/22/84 47 TIME ATTACHES
Day after
Arraignment 06/23/84 48 1
July '84 Term of
Court Begins 07/09/84 64 16
VanEtten Moves
for Severance
(Denied) 07/10/84 65 17
State Moves for
Continuance to
Feb. '85 Term
(Granted) 09/12/84 129 81
*813 TIME TOLLED: 09/12/84 to 01/28/85
VanEtten Moves
to Dismiss for
Failure to
Prosecute (Denied) 06/21/85 273 225
July '85 Term of
Court Begins 07/08/85 290 242
State Moves for
Continuance
from July 23 to
Aug. 5 Term
(Granted) 07/23/85 305 257
TIME TOLLED FROM 7/23/85 TO 8/5/85
Co-Def. moves for
continuance for
failure of state
to comply with
discovery. No
order entered. 07/25/85
(TIME IS NOT TOLLED. DELAY IS CHARGED AGAINST THE
STATE FOR ITS FAILURE TO ACCORD DISCOVERY ON A TIMELY BASIS.)
Flores Moves for
Cоntinuance to
Sept. '85 Term
to File Motion to
Dismiss for Failure
to Prosecute
(Granted) 09/06/85 337 289
TIME TOLLED: 09/05/85 to 02/18/86
Trial Begins[*]
(Both Defendants
renew Motions
to Dismiss
for Failure to
Prosecute) 02/18/86
A computation of time reveals that there was a total of 653 days from the dаy of Flores' arrest to the day of trial and a total of 606 days from the day of his arraignment to the day of trial. Not including the time of continuances granted for good cause, there was a total of 337 days from Flores' arrest to the day of triаl and 289 days from the day of his arraignment to the day of trial.
The period between August 5 and September 6, 1985, warrants discussion. In Flores (VanEtten) we considered whether continuances sought by a co-defendant should toll the time as to the complaining defendant.
The continuance sought by VanEtten on July 24 was on grounds attributable wholly to the state. There is no order granting a continuance and we are, therefore, left to assume that a continuance was granted for the reasons stated. Whether we take the record, as is, with no order of continuance, or assume a continuance оn *814 the grounds stated in the motion, the result is the same. Either way the time expended is charged against the state. See Vickery v. State,
CONCLUSION
Because Flores was denied a speedy trial pursuant to
REVERSED AND APPELLANT DISCHARGED.
ROY NOBLE LEE, C.J., and PRATHER, ROBERTSON, SULLIVAN and PITTMAN, JJ., concur.
HAWKINS, P.J., concurs with separate written opinion.
DAN M. LEE, P.J., dissents.
McRAE, J., dissents with separate written opinion.
HAWKINS, Presiding Justice, concurring:
I concur with the majority that there was a violation of
THE DISSENT
I am also compelled to respond to the dissenting opinion in this case. It is an example of impeccable logic coupled with no judgment, and the problems inevitably encountered when one heedlessly persists in the wrong direction. It also illustrates the prediction in the dissent in Hall v. State,
To attempt to clearly separate rules into "substantive" and "procedural" is a quagmire, as futile as the search for "proprietary" and "governmental" in attempt to decide sovereign immunity for сities. But what about public policy? Can we frustrate enactments embracing clear-cut, urgent public policy because we feel we know better? Just as the "power to tax is the power to destroy" the sole power to make rules of praсtice is the power to decide all cases long before they ever arise. By rules we can make it almost impossible to convict, or else almost impossible to acquit. (Emphasis original)
That
Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred severty (270) days after the accused has been arraigned.
This Court promptly interpreted this statute to mean that failure of the State to comply with it entitled the accused to discharge. Turner v. State,
This is a right the Legislature of this State has bestowed upon all criminally indicted *815 persons.[1]
Yet we have members of this Court asserting that simply because it is "procedural" we can take away this right. The dissent must surely be written with tongue in chеek.
The Legislature, expressing the sovereign will of the people, has enacted a Statute which says to an arm of the State, the prosecuting attorneys: "If you cannot bring a man to trial within 270 days of his arraignment, he must be discharged." That law may be wise or stupid, it does not matter. No court of this State has any authority except to enforce it.
In Hall we blithely whacked off
Now, using the logic of Hall, the dissent would obliterate a right the Legislature has bestowed upon persons criminally indicted, because it is "procedural." This is precisely what Kay, "The Rule-Making Authority and Separation of Powers in Connecticut," 8 Conn.L.Rev. 1 (1975), illustrated by the case of State v. Clemente,
Of course, if Hall were correct, this Court would have the lawful authority the dissent asserts we have. The point, however, is this Court had no lawful authority to do what we did in Hall, and neither does it remotely have the authority the dissent claims. It is mind staggering to read that this Court has the authority to obliterate an invaluable right the Legislature has bestowed upon all persons under indictment because it is "procedural," and in our own superior wisdom we will on our own enact a better law excuse me "rule."
The dissent refers us to an "excellent discussion" in Herbert, Process, Procedure and Constitutionalism: A Resрonse to Professor Page, 3 Miss.C.L.Rev. 45, 51-52, n. 32 (1982) (Dissent, p. 816). In deference, I find Professor Page, Constitutionalism and Judicial Rule-Making, 3 Miss. C.L.Rev. 1, Kay, supra, 1 Wigmore, Evidence, § 7 at 462-464 n. 1 (Tiller's Rev. 1983), and Ball, 60 Miss.L.J. 358 (1990) more persuasive.
Finally, after slapping the Legislature in the face as we did in Hall, the dissent, adding insult to injury to its argument, with a straight face informs us that "the legislature, as the voice of the sovereign people, deserves some deference on this matter." (Dissent, p. 816) Pray tell me what "deference" the dissent has shown the Legislature which, by this enactment, expressed the sovereign will of thе people?
If the Legislature sees fit to grant this Court the authority on its own to discharge an accused when there has been no unconstitutional infringement on his rights to a speedy trial it, of course, has the power to do so. In the absenсe of such statutory grant of authority, however, we do not have it. To assert that somehow we have this authority is a blatant usurpation. We have the prerogative and the duty to declare when an accused has been denied the right tо a speedy trial guaranteed by him by Article 3, § 26 of our Constitution, as well as the Sixth Amendment to the U.S. Constitution, and the same authority to determine when
This Court has the authority and duty to protеct rights of every litigant given him either by statute or the Constitution. No *816 court has the authority to remove any such right.
McRAE, Justice, dissenting:
I dissent from the majority opinion because I believe
In Newell v. State,
[t]he inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powеrs in the courts.
Id. at 76. See also Hall v. State,
In 1981, this Court entered an order adopting the rules and stated whenever any case or statute was violative of the rule-making power and the rules of this Court, it was void. See Order Adopting the Miss.R.Civ.P., May 26, 1981, and criminal rules.
Accordingly, this Court held in Hall v. State,
There can be little doubt that judicial power includes the power to make rules of practice, procedure and evidence. Hall,
This is not to say that we should not have a state speedy trial rule. This Court should promulgate one adopting a more flexible approach as in Barker v. Wingo,
Moreover, the legislature, as the voice of the sovereign people, deserves some deference on this matter. See Hudspeth v. State Highway Comm'n,
Since Hall and the orders adopting the rules, litigants and their attorneys have had a problem determining which rule, which statute, and which case decisions are in conflict with our rules. Until this Court addresses that serious problem completely, revisits its decisions and states specifically which statutes and cases are in conflict with the rules, these problems will continue.
*817 For these reasons, I dissent from the majority opinion.
NOTES
[1] To keep the two cases distinct, the previous decision involving VanEtten and Flores will be referred to throughout this opinion as Flores (VanEtten).
[1] It may be "procedural" to members of this Court, but I would surmise it is rather "substantive" to the man who must suffer.
Notes
[1] For an excellent discussion of the very real difference between procedural and substantive see P. Herbert, Process, Procedure and Constitutionalism: A Response tо Professor Page, 3 Miss. Coll.L.Rev. 45, 51-52 & n. 32 (1982).
[2] For example, it has not been firmly established whether docket congestion can be good cause for delay under the statute. Compare Yarber v. State,