I sense a change on Speedy Trial coming.

In McBride v. State that was handed down yesterday, Justice Dickenson wrote an excellent dissent laying out how our 270-day rule got where it is today.  I am going to post it verbatim.  Thank you, Justice Dickenson.

II.       The State violated McBride’s statutory right to a speedy trial.

¶.           The trial court erred in denying McBride’s pretrial motion to dismiss for violation of the Mississippi Speedy-Trial Statute. Over the years, numerous decisions of this Court have interpreted this statute’s clear language into meaninglessness.  It is long past time for us to apply the plain meaning of the text — as it was written by the Legislature.

¶.           Mississippi Code Section 99-17-1 reads, in its entirety:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

¶.           Under a plain reading of the statute, a trial must occur within 270 days of the defendant’s arraignment unless two requirements are met.  First, good cause must be shown.  Second, a continuance must be “duly granted by the court.”  When these two requirements are not met, if “the accused is not tried within 270 days of his arraignment, the defendant is entitled to dismissal.”

¶.           Despite our well-settled precedent requiring the strict application of clear, unambiguous statutes,  this Court — apparently unfettered by “the most fundamental rule of statutory construction”– has subjected the Speedy-Trial Statute to no small amount of judicial evolution.

¶.           For instance, with no statutory authority to do so, this Court now requires that a defendant raise a violation of the Speedy-Trial Statue within some undefined period or risk “waiv[ing] his right to complain” about the violation.  And if the defendant manages to do that properly, we still will deny him relief unless he can adequately convince the Court that the illegal delay actually prejudiced his defense — another requirement imposed by this Court without legislative authority.  Let’s review how we got here.

¶.           The Speedy-Trial Statute, passed in its present form in 1976, was first discussed in Payne v. State, which held that the statute “is plain and unambiguous” and that, when a defendant is not tried within the mandated 270 days, “[t]he only question [that] remains is whether or not the delay comes within the framework of the exceptions in the statute.”  If not, the defendant is entitled to dismissal.  At least as recently as 1991, the statute was applied in this clear, straightforward manner.  Then, the Court began to stray.

¶.           In State v. Harrison, decided in 1994, this Court, with no authority whatsoever to do so, decided that a violation of the statute did not really require dismissal of the case unless the delay prejudiced the defendant.  This Court stated that, where the State has violated the plain wording of the statute,

dismissal with prejudice is not required by the statute unless the state upon the finding of a violation fails to persuade the court that the violation did not prejudice the defendant’s ability to defend against the charge and that the state did not deliberately engage in oppressive conduct.  If the court is so persuaded the remedy shall be dismissal without prejudice to reindictment.

¶.           So this Court’s initial judicial amendment to the statute placed the burden on the State to disprove prejudice.  And in cases where the State was able to disprove prejudice, the case was dismissed without prejudice to reindictment, so the State had the opportunity to get it right a second time.  But where the State could not disprove prejudice, the case was dismissed with prejudice.

¶.           The camel’s nose was under the tent.  In a 1996 case, this Court further amended the statute to provide that the Speedy-Trial Statute was not violated at all absent a showing of prejudice.  And where Harrison had put the burden on the State to disprove prejudice, Walton shifted that burden to the defendant to prove affirmatively that he was prejudiced. Walton also brought with it the interesting revelation that a criminal defendant loses his statutory right unless he “asserted his right to a speedy trial or objected to a delay,” even suggesting that the defendant may have to raise the issue before the State’s 270 days have expired. As an interesting observation, I know of no other statutory violation that must be raised before the violation actually occurred.

¶.           This Court has followed these ill-conceived and incorrectly decided cases for the past fifteen years.  And for those who believe the Legislature erred in passing the statute in the first place, this Court’s amendments have worked well.  Since Walton, notwithstanding numerous cases in which defendants have been brought to trial long after expiration of the statute’s 270-day limit, this Court has never once held that the State violated a defendant’s statutory right to a speedy trial.

¶.           These unfounded and unauthorized judicial amendments to the statute have no place in our jurisprudence.  It is facially absurd to expect a defendant to raise the Speedy-Trial-Statute issue inside the 270-day window because, at that point, the statute has not yet even been violated.  And beyond that, nothing in the statute even remotely suggests that a defendant will be deemed to have waived the statute unless he demands a speedy trial within some arbitrary time frame.  This statute is really no more than a statute of limitations.  Just as a cause of action for trespass must be commenced within two years of the offending action, a criminal trial must be commenced — absent the statutory exceptions — within 270 days of arraignment.  I know of no other statute of limitation that must be raised before it expires.

¶.           The prejudice requirement is likewise erroneous.  Nothing in the text of the statute even hints that prejudice must be shown, for any purpose.  And even if we assume that prejudice must be shown, there is still no indication in the statute that the defendant should bear the burden of establishing that prejudice.  But even if the statute did require the defendant bear the burden of establishing prejudice, this Court repeatedly and consistently has held that when a delay exceeds eight months — or approximately 240 days — the defendant is legally presumed to have been prejudiced.  So even if we are to pretend that the statute requires the defendant to prove prejudice, there is no reason to believe that the defendant should not be entitled to the presumption of prejudice created by this very Court.

¶.           Mississippi’s Speedy-Trial Statute — which already is one of the most lenient statutes of its kind in the country — does not need this Court’s help.  If trying a defendant within 270 days is too onerous a burden, or if dismissal with prejudice in the wake of a violation is too harsh a remedy, Mississippi already has a legislative body, and it doesn’t need another one.  The Legislature is perfectly free to do with the Speedy-Trial Statute what it will. We are not.

¶.           I would overrule HarrisonWalton, and their progeny, and hold that the plain, unambiguous language of Section 99-17-1 requires that all defendants be tried within 270 days of arraignment unless the State can show good cause, and the trial court duly enters an order of continuance.

¶.           Turning then to the facts of this case, McBride was arraigned on August 10, 2006.  He was not tried until February 19, 2008 — a span of 558 days.  McBride requested a single continuance on February 14, 2008 (five days prior to trial), which was granted.  Other than that, there is no indication in the record either that the State requested, or that the trial court granted, any continuances.  So 553 days count against the State, more than twice the statutory limit.  Consequently, the trial court erred in denying McBride’s motion to dismiss.  I would reverse McBride’s conviction and order the charge dismissed with prejudice.



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