The court concluded that the delay had prejudiced the preparation of Ms. Parent's defense, dismissed the information, and discharged her. A delay by the state prior to the filing of an information can so adversely affect a defendant's right to prepare a defense that it will deny him the fourteenth amendment's guarantee of due process.Swan v. United States, 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); State v. Bennett, 382 So.2d 811 (Fla. 2d DCA 1980); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 134 (Fla. 1978). Whether undue delay has occurred depends upon the length of the delay, the reason for the delay, and, most importantly, the prejudice suffered by the defendant.
In this case, we identify and distinguish principles applicable to the determination of constitutional deprivations under the United States Constitution's Sixth Amendment Speedy Trial Clause and the Fourteenth Amendment Due Process Clause. We distinguish the considerations applicable to each respective clause, and expand upon our previous opinion in State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla. 1978). Appellant, James Howell, sold a small quantity of marijuana on August 8, 1979 to an undercover agent.
The sole ground mentioned by the trial court in its order of suppression was the State's failure to bring Breedlove to trial within the time limits set forth in Florida Rule of Criminal Procedure 3.191. However, since Breedlove's motion to suppress also asserted a denial of his right to a speedy trial under Article I, Section 16, of the Constitution of Florida, or the Sixth Amendment to the Constitution of the United States (as applied to the states via the Fourteenth Amendment), we will also treat the questions whether Breedlove was denied either of his dual constitutional rights to a speedy trial.State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), involved an appeal from an order dismissing an information charging the defendant with narcotics violations. The circuit court based its order of dismissal on the ground that the State had deprived the defendant of a speedy prosecution because the State's delay of eleven months between the date it had grounds to arrest defendant and the date it placed the defendant under arrest resulted in prejudice to the defendant "`in that he has no recollection of what he was doing or where he was nor has he been able to locate any witnesses who can speak as to his actions and whereabouts on the date of the alleged crime. . . .'" 347 So.2d at 694.
In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) the United States Supreme Court held that the due process clause protects against an oppressive delay between the time of the offense and the arrest or indictment. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) reemphasized that holding but made it clear that proof of actual prejudice is a necessary element of a due process claim and, even where presented, is not dispositive but merely makes such a claim ripe for adjudication. The second step in the due process inquiry is a consideration of the reasons for delay. Lovasco, 431 U.S. at 789-790, 97 S.Ct. at 2048-2049. As noted in Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982), the standards set forth in State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla. 1978) (a case heavily relied upon by appellant) for determining whether an arrest delay results in a due process deprivation are somewhat vague. Howell recognizes that the prior uncertainty, within the Court of Appeals for the Fifth Circuit, as to what is the proper test has been significantly clarified in United States v. Townley, 665 F.2d 579 (5th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982).
Appellant correctly points out that there are cases where the Due Process Clause is implicated by prosecutorial delay even though neither the defendant's right to a speedy trial nor the applicable statute of limitations are offended. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla. 1978). We do not find, however, that appellant's May 19, 1978 motion was effective to raise the issue of prejudice resulting from the four-month delay between the crime and the indictment occurring the previous summer and fall.
-half months); State v. Roundtree, 118 N.J.Super. 22, 285 A.2d 564 (1971) (four months); People v. Duran, 188 Colo. 420, 535 P.2d 505 (1975) (en banc) (four months); People v. Anderson, supra, (four and one-half months); People v. White, 59 Mich.App. 164, 229 N.W.2d 357 (1975) (four and one-half months); Dixon v. State, Alaska, 605 P.2d 882 (1980) (five months); State v. Davis, Mo.App., 585 S.W.2d 60 (1979) (six months); People v. Hutchinson, 192 Colo. 204, 557 P.2d 376 (1976) (en banc) (six months); State v. Royal, 217 Kan. 197, 535 P.2d 413 (1975) (six months); State v. Torres, 116 Ariz. 377, 569 P.2d 807 (1977) (In banc) (seven months); State v. Cuevas, Iowa, 282 N.W.2d 74 (1979) (eight and one-half months); People v. Dunn, 7 Ill.Dec. 879, 49 Ill.App.3d 1002, 365 N.E.2d 164 (1977) (nine months); People v. Park, 36 Ill.Dec. 386, 81 Ill.App.3d 108, 400 N.E.2d 966 (1980) (ten months); State v. Griffin, 347 So.2d 692 (Fla.App.1977) (eleven months); Tolliver v. United States, 378 A.2d 679 (D.C.App.1977) (eighteen months); State v. Redding, Mo.App., 573 S.W.2d 371 (1978) (eighteen months); Hovee v. State, Wyo., 596 P.2d 1127 (1979) (twenty months); Terry v. State, Ind.App., 400 N.E.2d 1158 (1980) (two years); Commonwealth v. Imbruglia, 377 Mass. 682, 387 N.E.2d 559 (1979) (two years); People v. Nichols, 60 Ill.App.3d 919, 18 Ill.Dec. 330, 377 N.E.2d 815 (1978) (four years); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (six and three-quarter years). In Daniels, supra, the Court stated that the time period was nearly seven years between a homicide victim's death and Daniels' arrest.
" Barrett argues that State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), and Haliburton v. State, 514 So.2d 1088 (Fla. 1987), demonstrate that the Florida Constitution provides greater due process protection than does the United States Constitution. Griffin involved an analysis of a defendant's right to a speedy trial under the Sixth Amendment to the United States Constitution and noted that the Florida Supreme Court had adopted a rule of procedure that established specific time periods under Florida's constitutional speedy trial provision. Id. at 695.
The effect of a delay in prosecuting a case by the state is a factor in determining whether the defense exercised due diligence. See State v. Bennett, 382 So.2d 811 (Fla. 2d DCA 1980); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977). AFFIRMED.
Prejudice to one's defense by reason of the delay is required. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977). . . . (W)e emphasize that the Fifth and Fourteenth Amendment guarantees of procedural due process ensure that proceedings to suspend or revoke Petitioner's license to practice dentistry must be essentially fair.Id. at 649.
The argument of defendant, who apparently has mental problems, is that he was prejudiced in the preparation of his defense by that delay because of memory infirmities and that he requires the evaluation of a psychiatrist. Defendant cites Barber v. State, 438 So.2d 976 (Fla. 3d DCA 1983), review denied, 447 So.2d 885 (Fla. 1984); State v. Parent, 408 So.2d 612 (Fla. 2d DCA 1981), review denied, 418 So.2d 1280 (Fla. 1982); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), appeal dismissed, 352 So.2d 175 (Fla. 1977), cert. dismissed, 358 So.2d 134 (Fla. 1978). In reversing we agree with the trial court's initial inclination from which it receded by dismissing the information.