State v. Southard

Allegrucci, J.,

dissenting: I dissent from the majority’s holding that Southard’s statutory right to a speedy trial was not violated. I disagree with the majority that the 28 days between arraignment on April 20 and May 18, the date the court scheduled for hearing motions, should be attributed to Southard.

In City of Dodge City v. Downing, 257 Kan. 561, 563, 894 P.2d 206 (1995), we held:

*753“When a defendant, as in this case, files a motion to suppress evidence, any delay caused by the filing of the motion is necessarily the result of the application of the defendant. Under a plain reading of the statute, a reasonable time taken by the parties and the court to process the defendant’s motion to suppress should be charged to the defendant. This is the rule in Kansas as well as in many other jurisdictions.”

We held the 16 days from the date defendant filed his motion until the date set for hearing the motion and the 14 days it took the court to rule on the motions were “delays which happened as a result of the application of the defendant.” 257 Kan. at 565.

Here, Southard did not file his motion until June 9, some 3 weeks after the May 18 hearing date. In fact, the parties jointly requested that the May 18 hearing be continued to June 16. Southard withdrew his motion to suppress on June 16, and the only motion heard was the State’s motion, which was taken under advisement by the court.

Southard did nothing to delay the trial. His motion to suppress was actually pending only 7 days out of the 57 days attributed to him on the basis of pending motions. In Downing, this court concluded that a reasonable amount of time for processing a defendant’s motion should be charged to the defendant. That was the time between the filing of his motion and the time the motion was heard. It also included a reasonable time for the court to decide the motions. There was no showing in the present case that any time was attributable to briefing the defendant’s motion or for the court to rule on the motion. In fact, the defendant’s motion was never heard by the court.

Notwithstanding, the majority assesses the time to the defendant because on “April 20, 1994, Southard needed a 2-hour hearing; by June 16, 1994, he did not need a hearing at all.” The irony of that rationale is that because the defendant might need 2 hours for a hearing, the 28 days between April 20 and May 18 is a delay resulting from the fault of the defendant. The majority opinion requires defense counsel to choose between advising the court of the intent to file a motion and a defendant’s right to a speedy trial. The State, on the other hand, has no such problem in that the time is assessed to the State whether or not it advises the court. The State *754has the added benefit that if the defendant requests a hearing, the State may then also do so, and the time will be assessed to the defendant. I find that to be unacceptable.

It is disingenuous for the majority to say that by extending “the Downing rationale to the facts of this case,” Southard’s right to speedy trial was not violated. Downing is not authority for the majority’s opinion. The majority ignores rather than extends the Downing rationale. The majority’s holding renders meaningless Southard’s statutory right to a speedy trial and nullifies the State’s responsibility to bring him to trial within 90 days.

I would hold that Southard’s right to a speedy trial was violated and reverse the trial court.