Opinion
Case No. 990846-CA.
Filed December 14, 2000. (Not For Official Publication)
Appeal from the Third District, Murray Department, The Honorable Joseph C. Fratto, Jr.
Michael L. Humiston, Heber City, for Appellant.
Sirena M. Wissler, Salt Lake City, for Appellee.
Before Judges GREENWOOD, BENCH, and ORME.
MEMORANDUM DECISION
Defendant argues a delay of twenty months between the incident leading to filing of criminal charges against him, and trial deprived him of his right to a speedy trial. In determining whether the delay in this case violated defendant's right to a speedy trial, we look at four factors: "the length of the delay, the reason for the delay, the defendant's assertion of the right to a speedy trial, and the prejudice to the defendant resulting from the delay." State v. Ossana, 739 P.2d 628, 630 (Utah 1987) (footnote omitted).
Defendant was initially charged in justice court with a class B misdemeanor. The State allowed the justice court proceeding to be dismissed and then refiled the charges in district court as a class A misdemeanor. Defendant claims that the State's delay in filing the initial information and in bringing him to trial deprived him of the ability to locate witnesses who observed the incident, and thus he was unable to properly defend himself at trial. "The Sixth Amendment and the Due Process Clause involve two distinct aspects of prosecutorial delay. Delay between formal accusation and trial implicates the Sixth Amendment, while delay between the commission of an offense and initiation of prosecution raises due process concerns." State v. Byrns, 911 P.2d 981, 985 (Utah Ct.App. 1995) (internal citations omitted).
In Byrns, a federal court indictment was dismissed and the State then filed charges in state court. See id. at 985. The defendant argued that the State's delay in filing charges deprived him of his ability to locate a crucial witness. See id. at 986. Because defendant did not show that the State delayed for any tactical purpose, this court determined that defendant's right to due process had not been violated because there was no "purposeful design." Id. In this appeal, defendant has not raised a due process claim, and more importantly, has not pointed to any evidence to show the State refiled the charges in district court to gain a tactical advantage. Therefore, defendant is not entitled to any relief based on a delay in filing charges in district court.
Turning to the remainder of the twenty month period of which defendant complains, we must determine if the delay from October 13, 1998, when the State filed the new information, to June 17, 1999, when the trial occurred, was excessive. Cf. State v. Snyder, 932 P.2d 120, 129 n. 13 (Utah Ct.App. 1997) (holding, for purposes of first-prong of speedy trial analysis, time elapsed during first trial is not included).
The State filed the information with a summons on October 13, 1998. On January 13, 1999, the State filed an amended information and requested a warrant for defendant's arrest, which the trial court issued based on defendant's failure to respond to the summons. On May 5, 1999, defendant appeared in court for arraignment. Thus, almost seven months elapsed because defendant did not respond to the initial summons and did not respond to the warrant for five months after it was issued by the court. Therefore, the delay was largely due to defendant's own acts. The time lapse thereafter was reasonable and did not violate defendant's right to a speedy trial. Furthermore, defendant submitted at least two motions for continuance between the May 5th arraignment and the June 17th trial date.
Although defendant ultimately asserted his right to a speedy trial for the first time a week before trial, he has not shown how he was prejudiced by the delay. See Ossana, 739 P.2d at 630. Defendant asserts he was unable to locate witnesses to aid him in his defense. However, defendant has neither shown that he could have located witnesses had there been no delay, nor has he plausibly shown how those witnesses would have produced a different result at trial. In light of defendant's motions to continue and his lack of specific proof that he could have located witnesses, we cannot say he was prejudiced by any of the delays in this case.
Consequently, under the four-prong analysis mandated by Ossana, none of the factors weighs in defendant's favor: the delay of eight months was not egregious, the delay was due in large part to defendant's own acts, defendant did not assert his right to a speedy trial until a week before trial and only after his motions to continue were denied, and defendant has not shown he was prejudiced.
Accordingly, we affirm the trial court's denial of defendant's motion to dismiss for lack of a speedy trial.
Pamela T. Greenwood, Presiding Judge.
WE CONCUR: Russell W. Bench, Judge, Gregory K. Orme, Judge.