State v. EllisState v. Ellis
- Reporters:
- , ,
- Before:
- O'Connor
The opinion of the court was delivered by
O’Connor, J.:
The appellant has appealed from his conviction of the offense of escape from the penitentiary without breaking, in violation of
The controlling question for our consideration is whether or not an accused imprisoned in the state penitentiary for another offense, who has a criminal charge pending against him in Leavenworth
A complaint was filed on November 6, 1967, in the City Court of Leavenworth charging appellant with the offense in question. On September 18, 1968, pursuant to an arrest warrant, appellant was brought before the judge of the city court where the complaint was read, preliminary hearing was waived, and appellant was bound over to the district court for trial. Thereupon, appellant was ordered returned to the custody of the warden of the state penitentiary.
An information was filed in the District Court of Leavenworth County on October 25, 1968. Appellant was arraigned on September 22, 1969, and trial was set for October 1. On September 26, a motion to dismiss the information was filed on grounds that (1) the information had been pending in district court more than two terms without appellant being brought to trial, in violation of
The parties have stipulated that appellant was incarcerated in the penitentiary during the period September 10, 1968, to September 30, 1969, and that he took no action to cause delay in his case coming to trial. It is further agreed that the provisions of
Within this factual framework, was appellant denied his right to a speedy trial?
The Kansas Constitution provides in Section 10 of the Bill of Rights that every person accused of a crime is entitled to a speedy trial. In a number of cases this court has said that the right to speedy trial provided for in our Constitution is legislatively defined by the various statutes enacted to supplement the general language of the Constitution and render the constitutional guarantee effective.
At the time the district judge ruled on tifie motion to dismiss, he did not have the benefit of our decisions in
State v.
Brooks,
The Uniform Mandatory Disposition of Detainers Act was enacted by the legislature in 1959. This act, for the first time, provided a method whereby an inmate of a penal institution could require the disposition of any criminal charges pending against him. The apparent purpose of the legislature in passing the act was to prevent the oppression of a confined prisoner in a penal institution by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the administration of justice by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal cases. (See, State v. Goetz, 187 Kan. 117, 353 P. 2d 816.) The courts in recent times have dispelled the idea that a man already in prison under a lawful sentence is not in a position to suffer from undue and oppressive incarceration prior to trial. As emphasized in Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 607, 89 S. Ct. 575, delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bond upon an untried charge.
We have repeatedly held that to obtain the right of a speedy trial under the Uniform Mandatory Disposition of Detainers Act, the inmate must take affirmative action to comply with all the provisions of the act, otherwise he waives his right to question whether he had a speedy trial.
(State v. Brooks,
supra;
Brimer v. State,
195 Kan. 107, 402 P. 2d 789;
State v. Goetz,
supra.) The affirmative action required of the inmate, however, is conditioned upon the prison officials having complied with
Unlike in Brooks and Thomas, the prosecution here was pending in the same county where the state penal institution was located. Under these circumstances, the district court apparently took the position that the spirit of the act was satisfied inasmuch as appellant had been brought before the city court and, thus, was aware of the complaint pending against him. Such an interpretation, we believe, completely ignores the plain terms of the statute requiring the warden to inform the prisoner in writing of his right to request disposition of any untried charges.
By the enactment of
In view of the stipulation that the provisions of
The judgment is reversed and the case remanded to the district court with directions to enter an appropriate order.