(dissenting).
The majority denies defendant his right to speedy indictment in this case from fear of what might happen in some other case rather than because of what actually happened here. I respectfully dissent.
I. The evidence is undisputed and was accepted as true by trial court that no lawyer was employed by defendant or assigned or appointed for him on the instant charge during the 35 day delay between bind-over and indictment. During that period he was incarcerated not because he was guilty but because he was poor and could not purchase his liberty by furnishing bail. The majority speculates that he could have consulted attorney Yaneff about this charge during the period of delay and on that basis was not “unrepresented by legal counsel.” Concerned that some future indigent might use this as a device to “trap” the State into thinking he was represented, the majority says in effect that, although defendant was not represented on this charge, he conceivably could have been and thus was for purposes of the statute.
The State does not allege it was trapped here nor does the evidence suggest the State had any basis for believing defendant had a lawyer on this charge prior to the post-indictment appointment of Mr. Yaneff. The only trap was sprung on defendant who was actually led to believe he could not have a lawyer on the charge until taken to court:
“I asked one of the other jailers and he told me that lawyers were appointed in court and I would have to wait until I went to court. I asked Mr. Rodberg, Chief Deputy, and he told me the same thing, that I would have to wait until I was in court.” .
In these circumstances he cannot be held to have waived his right to timely indictment under § 795.1, The Code, and that statute “unmistakably provides” the charge should have been dismissed. State v. Lindloff, 161 N.W.2d 741, 743 (Iowa 1968), and citations.
II. The majority also says the State had good cause not to indict within the 30 day period. However, the State did not claim or prove good cause for the delay, or any cause for that matter. “It was the burden of the State to assert and prove as a matter of record good cause if so contended.” State v. Bowers, 162 N.W.2d 484, 487 (Iowa 1968). The State did not even hint it knew defendant talked to a lawyer about the California hold order, much less claim it delayed indicting him because of it. Defendant is not obliged to prove he was “prejudiced” by the State’s violation of its statutory duty. The State must comply with the statute or suffer dismissal.
We should say here as we have said before: “It * * * is our duty to give full force and effect to the directive of section 795.1 even though it results here in release of one found guilty of a serious offense by a jury.” State v. Bowers, supra.
I would reverse.