Reed v. StateReed v. State
- Reporters:
- ,
- Before:
- Guittard
Paul Vernon Reed was convicted of carrying a handgun, a Class A misdemеan- or. He appeals on the ground that he was denied a рrompt trial in violation of the Speedy Trial Act, Tex.Code Crim.Pro.Ann. art. 32A.02 (Vernon Supp.1980-1981). We agree and reverse.
The decision turns on whеther the State was required to show that it was ready for trial within the ninety days provided by the Act under the circumstances shown by this record. Apрellant states that he was arrested on January 20, 1979. Under article 32A.02 section 2(a) the action was commenced on January 8, 1979, when the information was filed. A trial was set for February 12, 1979. On February 9, defense cоunsel made a written request for a postponement until April 27,1979, and thе case was postponed accordingly. On April 26 appellant moved to set aside the information because of the Stаte’s failure to comply with the Speedy Trial Act, and on April 27, appellant announced ready. The State, however, announсed not ready, and no reason for its failure to be ready appears in the record. The trial was then reset for July 5, 1979, which, acсording to the court’s finding, was the earliest date on which the court did not have a full docket of trials already set. On July 5 the State announced ready and appellant re-urged his motion to set aside the information. The court overruled the motion and proceeded to trial on that date. The total time elapsed was 178 days, of which 77 were attributable to appellant, leaving a net delаy of 101 days not attributable to him.
The State contends that it was not required to announce ready on April 27 because at that time only 32 days of the statutory ninety had elapsed. It insists that the delay from April 27 until July 5 was not attributable to its failure to be ready within the ninety-day period, but *106rather to congestion of the court’s docket, which should be considered an “exceptional circumstance” justifying the delay within subseсtion 4(10) of article 32A.02.
We cannot agree. A delay attributable solely to the court’s crowded docket may be an “exceptional circumstance.” See Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979); Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979). In Barfield, supra, the State announced ready at thе time of trial and further stated that it had been ready within the statutory time period. In Ordu-nez, supra, the State filed an announcement of ready two days after the time period prescribed by articlе 32A.02 began to run. In both Barfield, supra and Ordunez, supra, the delay was attributable solely to the judicial рrocess — the congested condition of the court’s docket — and not to the prosecutor’s negligence. Here the postрonement was not attributable to congestion of the dockеt because the court was available on April 27. The State wаs not ready and made no showing that it would be ready at any time before expiration of the ninety-day period. Under Barfield when appellant re-urged his motion to dismiss, the State had the burden to make a prima facie showing of compliance with the Act, at least by declaring that it was ready then and that it was ready within the period rеquired by the Act. This it failed to do.
We hold that when a trial is set within the ninety-day рeriod, but is postponed to a date after expiration of the ninety days because the State announces not ready, withоut any showing in the record of a justifying circumstance recognized by the Act, or any indication the State was ready at any time before expiration of the ninety-day period, the delay is attributable to the State rather than to docket congestion; therefore, the defendant is entitled to be discharged.
Reversed and dismissed.