*1 seek replacement.8 We also think the aggregating WYNN, court correct in not II, Appellant, Joseph A. amount the award for loss of use with making comparison cost of repairs STATES, Appellee. UNITED with the diminution in value to decide on 11226. No. damages measure of to use. mat- No
ter which award is proper damages for the Appeals. Columbia District of actually appellee’sear, done to he would not Argued March 1978. be made whole recovery without damages he of being suffered as a result May Decided any vehicle a period of time reasonably necessary replace repair or his
damaged auto.9 re
Consequently, we reverse and to the trial for a
mand court determination
of the fair market vehi appellee’s value
cle immediately prior to the accident10 in compare
order that the court can then
alternative enter recovery standards of appellee to the according low award,
er damage plus the award his
loss (i. e., $270). of use his car
Reversed and remanded with instruc-
tions. Annot., generally purpose, make its See 18 A.L.R.3d 519- 10.For court finding (1968) cases But id. on the basis of the cited therein. see factual concerning Naturally, seeking already the vehicle’s at 516-19. ei owner — value, appellee repair replace but mindful or to vehicle —must fair market ther his proof mitigate damages through prompt burden of on that issue. action. Smith carries the 494; Brooks, supra recovery Knox v. Akows loss Smith v. at His of use must limited necessary key, reasonably repair supra of record period at 408. The evidence of time cord, ap testimony appellants’ replace at the car. See id. 545—48. Ac consists $200, ap- Co., praiser, estimating Capital D.C.Mun.App., at the value Brandon Transit Eschinger pellee’s testimony concerning (1950); the fair market Unit A.2d 622-23 vehicles, replacement Co., D.C.Mun.App., comparable value of Mutual Fire Insurance (however, ranging $500 due $375 727-28 mitigate damages, duty appellee’s the lower replacement vehicle seems A.L.R.3d, market value of Annot., supra at 541-42. See consider). figure appropriate the more id. But see at 540—41.
696
GALLAGHER, Judge: Associate 17, 1975, On April appellant was charged with attempted degree burglary1 second and recognizance. released on own his case was set for trial June but 10 continued on for that date lack trial judge availability. When the next trial date, August 6, arrived, it was again contin- ued to 10 because of the absence of October a defense witness. August 25,
On appellant filed a motion to or, speedy dismiss for lack of alterna- trial tively, to advance the trial date. motion, appellant twenty- asserted his second birthday August would arrive on and he possibility would then lose the being sentenced under the Youth Correc- speedy tions Act.2 The trial motion to dis- miss was denied but the court granted request alternative the trial advance date. August Trial was scheduled for 29. arrived, When government that date represented it locate one of its could not trial notice. The witnesses on such short judge dismissed the ease without thereupon Approx- prejudice prosecution. want later, imately two months charging new the same filed a information viz., offense, plus charges, two new unlaw- destroying private property,4 and entry3 ful emanating from the He same evidence. $2,000 conditionally released on bond. Hunt, C., ap- Washington, Gaillard T. D. to dismiss for lack Appellant filed a motion pointed court, appellant. trial, This among grounds. other speedy Lehr, L. U. Atty., Michael Asst. Wash- S. was denied. the case was called for When C., Silbert, ington, D. with J. U. whom Earl trial the received a continuance Terry, George, A. E. Atty., S. John Peter was ill. police because one of the witnesses Kramer, Gailis, Ann A. P. Noel Asst. U. weeks, the case was called for trial two C., Attys., Washington, D. were on the S. try it. judge and no was available to Six brief, Gordon, appellee. D. Asst. Steven date, days before new trial C., U. also Atty., Washington, S. D. entered filed to dismiss for lack another motion appearance appellee. Upon speedy trial. certification it to calendar judge trial re-certified GALLAGHER, pendency YEAGLEY and of the Before control court due to the MACK, and again The motion was heard Judges. Associate motion.5 22-103, -1801(b). § 4. 22-403. D.C.Code §§ D.C.Code seq. U.S.C. et § purportedly pursuant to Su- done 5. This 47-I(e). per. Cr. R. Ct. entry Unlawful § D.C.Code 22-3102. burglary included in the lesser offense States, degree. D.C. Hebble United App., date, days scheduled thus before Approximately denied. fourteen months arrest, the trial until place necessitating delay jury trial took Super. Ct. Cr. be heard. See was convicted of bur- motion could right to glary property6 47-I(d). and R. While assertion factor, the important placed probation. trial is an meaningful. timely must be assertion can- (a) contends conviction *3 Jones, U.S.App.D.C. 154 v. United States he an not stand as he established was inno- 211, (1972). F.2d 322 475 did bystander cent and the not prove charge beyond the a reasonable view the addition take a dim We doubt; to (b) right he a was denied charges after the court dismissed of new trial; (c) speedy erroneously he was denied prejudice. the first information without right the show had arrest prior to he no unsuccessfully a early sought had Appellant record; (d) prosecutior- the not should have grant speedy a trial dismissal for failure been allowed to add additional offenses to or, alternatively, of the trial an advance the the first information information after govern Shortly date. thereafter when the dismissed, prejudice. was though without produce ment was unable to a witness only go-
We need discuss
the contentions
was dismissed
short notice
information
of of-
ing
speedy trial and
addition
reason,
apparent
For no
prejudice.
fenses
of the first infor-
after
dismissal
giving
the same factual situation
information,
mation.7
govern
rise to the first
more
ment added two
misdemeanors9
review of the record discloses
Our
information filed.
the second
presentation
question,
of a close
result
improper
an
delays,
suggest
Because such tactics
ing
disturbing
from a
series of
but
motive,
charge of which
we think the added
require
the record does not
dismissal for
private
(destruction of
a
he was convicted
grant
speedy
failure to
trial.
vacated. See Black
delay.
of the
The
should be
responsible
part
property)
was
2098, 40
ledge Perry,
94 S.Ct.
early
case
have
to trial in its
417 U.S.
might
gone
(1974);
628
North Carolina
stages were
not for
absence of a L.Ed.2d
witness,
89
23
in a
395
S.Ct.
defense
which resulted
contin
U.S.
(1969); United
Jami
uance
trial
The
substan L.Ed.2d 656
States
only
date.
son,
505 F.2d
appellant
U.S.App.D.C.
tial
is that he
prejudice
alleges
may
is
to state that one
possibility
(1974).
was denied the
Youth Act
This
not
reindicted,
a
information
not
or that new
by
delays.8
But
be
sentencing
is
trial. This not
days
twenty- may
waited until a few
of his
not be filed before
here,
where, as
a
But
practice.
it to
birthday
uncommon
bringing
before
anof
infor
sought
was
has
dismissal
The
on defendant
attention of the court.
burden
indictment)
to obtain
(or
for failure
bring
to the atten mation
appellant to
this factor
does
soon thereafter
way.
speedy
He
trial and
timely
tion
the court in a
circum
under
fact later obtain a dismissal
his third motion to
likewise
to file
waited
we
prosecute,
resembling failure
until six stances
lack of
trial
dismiss for
contention,
entry
we
to this
charge
were substance
During
there
of unlawful
guilty
pleaded
had earlier
note the witness
dismissed.
burglary
with the
in connection
carefully
appellant’s
Thus,
con-
We have examined
value of
offense.
“[t]he
same
relating
insufficiency
immediately,
of the evi-
tentions
to him
witness was known
permit
lack of
preserve
failure
him to show
steps
dence and
taken
could have
they
prior
and conclude
are
arrest
memory.”
v. United
Smith
this witness’
alleged
Appellant also has
oth-
without merit.
States, D.C.App.,
errors,
sup-
finds
er
court
none
port in the record.
before,
unlawful en-
stated
9.As
burglary,
try,
lesser included offense
by
alleges
prejudiced
He
also
he
during
dismissed
trial.
memory.
fading
Even if
of a defense witness’
believe the
would have been
Remanded with instructions to vacate the
better
advised to refrain from adding
judgment
for destroying pri-
of conviction
charges. The setting lent
itself
to be
vate property; and
viewed as a manifestation of vindictiveness.
conviction for attempt-
An actual retaliatory motive need not exist.
is
burglary
affirmed.
It is sufficient if the state
record is
such that
it might create apprehension on
YEAGLEY, Associate Judge, concurring
the part of
they
defendants that
if
assert
in part
dissenting
part:
right
their
to a speedy
trial there
I
Although
retaliation if the
am in
presents
agreement
occasion
full
with the
itself.
Blackledge
v. Perry, supra.
appel-
insofar as affirmance of
lant’s conviction for
attempted burglary
The same conclusion was reached
concerned, I
respectfully
must
dissent from
recent decision
Ninth Circuit. Unit-
*4
my colleagues’
decision
remand for vaca-
Groves,
ed
(9th
States v.
We need not find that
the prosecutor
The majority correctly observes
that
acted in bad faith
maliciously
or that he
courts have viewed with suspicion the
sought
marijuana
the
indictment. The
bringing
charges
of more serious
based on
core of the Blackledge, Pearce and Rues
the same facts in the second indictment
ga-Martinez
that
decisions is
it
is the
following
prosecutorial
a remand.
Such
vindictiveness,
appearance of
rather than
gives
conduct
prose-
rise to an inference of
fact,
vindictiveness
which controls.
potential
cutorial vindictiveness and has a
at
F.2d
[571
453.]
chilling effect on a defendant’s assertion of
agree
majority
We
with this
the
the
rights.
statement of
law.
constitutional
As
government
notes,
cases,
The
involving
here has
no ade-
a line of
usually
offered
quate explanation
beginning
for the
addition
new remand for
new
with
Pearce,
711,
charges arising from the same set of facts.10 North Carolina v.
U.S.
(1969),
we vacate
relies. also United States See of a as the vacation measure (9th 1976). Martinez, F.2d Cir. involving charge added conviction on an bringing of new how- facts. The my colleagues, additional part company I with ordinarily charges is considered ever, their view that we additional respect with discretion.1 prosecutorial a matter of remand for vacation should hearing we should remand my under view conviction here given oppor- prosecution that at which the circumstances. I note that the instant that showing satisfy its burden tunity cases proof. additional charge required bring it to did not motivate presumption vindictiveness heavy above create a discussed charges against additional arising motive improper prosecutorial may, prosecution around. The charges more second time rebringing of serious from the that new establish following example, dismissal set of facts same property support information. indictment or original period attention in however, not, charge came preclude The authorities do informations, and second the first evidence to between prosecution producing came witness unknown previously or that a Although this presumption. rebut such, the period. As during forward Blaekledge, I this in not discuss Court did sentencing be like would prosecution noteworthy that think it Pearce, may demonstrate who, under scrutiny, judge under conduct was judicial following the sentence he increased judge could sentencing held that extrinsic, aggra- due to some findings reconviction by requisite presumption rebut the Hayes, - U.S. -, 54 L.Ed.2d 1. Cf. Bordenkircher v. 98 S.Ct.
vating factor. I believe this is well within
the letter spirit of the cases on which
both majority and rely, I and I think
that a reasonable balancing of the interests
of due process and prosecutorial discretion
requires that we do no less.
Dorothy HAUGNESS, Petitioner, H.
DISTRICT UNEMPLOYMENT COM- BOARD, Respondent.
PENSATION
No. 11890.
District of Appeals. Columbia Court of Aug.
Submitted May
Decided *6 se.
Dorothy Haugness, pro H. Carter, Smith, Russell L. Bill L. J. Robert Jr., Vass, Washington, Hallock and Earl S. C., for respondent.
D. were on brief NEBEKER, Before KERN Associate HOOD, Judges, Judge, Retired. Chief