Está en la página 1de 156

Copyright (c) West Group 2003 No claim to original U.S. Govt.

works

39 A.L.R.4th 899 (1985)

*34636 American Law Reports


ALR4th
Copyright (c) 1985 The Lawyers Co-operative Publishing Company

Annotation

APPLICATION OF SPEEDY TRIAL STATUTE TO DISMISSAL OR OTHER TERMINATION OF PRIOR


INDICTMENT OR INFORMATION AND BRINGING OF NEW
INDICTMENT OR INFORMATION

John H. Derrick, J.D.

TABLE OF CONTENTS

Article Outline
Research References
- Total Client-Service Library References
- Research Sources
Index
Table of Jurisdictions Represented
Article

ARTICLE OUTLINE

I. Preliminary Matters

s 1. Introduction

[a] Scope
[b] Related matters

s 2. Summary and comment

[a] Generally
[b] Practice pointers

II. General principles

s 3. View that statutory speedy trial period continues to run despite termination
of prior accusatory instrument

s 4. View that statutory speedy trial period starts anew under subsequent
accusatory instrument

s 4.5. View that statutory speedy trial period is tolled during time between
termination of initial accusatory instrument and
filing of subsequent accusatory statement

III. Termination of prior accusatory instrument attributable to prosecution

s 5. Generally
[a] Held to continue to run
[b] Held to be tolled
[c] Held to run anew

s 6. Where subsequent accusatory instrument was based on new evidence or facts

s 7. Where prior accusatory instrument was alleged to be defective or otherwise


invalid

[a] Held to continue to run


[b] Held to run anew
[c] Held to be tolled
s 8. Where prosecution witness was alleged to be unavailable

[a] Held to continue to run


[b] Held to be tolled
[c] Held to run anew

s 9. Where prior accusatory instrument was filed in wrong court

s 10. Where prior accusatory instrument was terminated with leave to reinstate

s 11. Other particular circumstances

IV. Termination of prior accusatory instrument attributable to defense

s 12. Generally

s 13. Where prior accusatory instrument was terminated on speedy trial grounds

s 14. Where prior accusatory instrument was terminated for lack of probable cause

s 15. Where prior accusatory instrument was alleged to be defective or otherwise


invalid

[a] Held to run anew


[b] Other results

s 16. Where prior accusatory instrument charged felony and subsequent accusatory
instrument charged misdemeanor

s 17. Other particular circumstances

V. Termination of prior accusatory instrument attributable to other than


prosecution or defense

s 18. Generally

s 19. Where prior accusatory instrument was alleged to be defective or otherwise


invalid

s 20. Where prosecution witness was alleged to be unavailable

s 21. Where prior accusatory instrument was terminated for lack of probable cause
or failure to state prima facie case

s 22. Where prior accusatory instrument was terminated for failure to prosecute

s 23. Where prior accusatory instrument was brought in different court

s 24. Other particular circumstances

[a] Held to run anew


[b] Other results

INDEX

Abduction s 18
*34637 Abortion s 11

Absence of defendant s s 3[a], 5[b]

Absence of witnesses s s 8, 20

Alcohol, driving under influence s s 7[a], 16

Armed robbery s s 10, 11

Arrest, resisting s 7[a]

Arson s 17
Assault and battery s s 5[a], 6, 8, 11, 20, 24[b]

Assistance of counsel, effective s 4

Automobiles and traffic s s 5[c], 6, 7[a], 15[b], 16, 18

Availability of defendant s s 3[a], 5[b]

Availability of witnesses s s 8, 20

"Backlog" in prosecutor's office s 18

Bail s s 4[a], 5[b], 8[c]

Bank check, intent to defraud s 23

Barbiturate sale s 16

Breaking and entering s 5[c]

Bribery s 5[a]

Burglary s s 5, 7[b], 8[c], 12, 14, 18, 19, 21, 24

Carrying weapons s 5[a]

Checks, intent to defraud s 23

Cocaine sale s 5[a]

Comment s 2

Confinement of defendant s s 3 et seq.

Conspiracy s s 5[a, c], 6, 7[b], 18

Continuance, request for s s 5[b], 7[a]

Cooperation of witness s 8[a]

Credit transaction violations s 12

Custody of defendant s s 3 et seq.

Death of witness s 8[b]

Defective instrument s s 7, 15, 19

Defense responsible for termination of instrument s s 12-17

Description and identification defective s s 7, 15[a]

Disorderly conduct s 5[b]

Drivers' license revoked s 6


Driving under influence s s 7[a], 16

Drug offense s s 5, 7[a], 13, 15[a], 16, 18, 19, 22

Drunk driving s s 7[a], 16

Eavesdropping s 5[c]

Effective assistance of counsel s 4


Embezzlement s 5[a]

Evidence suppressed s s 5[c], 19

Exclusion of juror s 5[b]

Eyewitness' unavailability s 20

False pretenses, money obtained by s s 5[c], 6

Federal prison incarceration s 8[b]

Felony/misdemeanor inconsistency s 16

Filing instrument in wrong court s 9

Fire, setting of s 17

Foreign county s 5[c]

Forgery s s 5[c], 22

Fornication s 19

Hallucinogen, possession of s 22

Hashish, delivery of s 7[a]

Heroin sale s 18

Homicide s s 5-7, 14, 15[a], 16, 18, 20, 21, 24[a]

Identification and description defective s s 7, 15[a]

Intoxication s s 7[a], 16

Introduction s 1

Invalidity of prior instrument s s 7, 15, 19

Jail or prison confinement s s 3 et seq.

Joinder of defendants s s 5[a], 6, 14

Jurisdictional defect s s 9, 23

Juror excluded s 5[b]

Jury trial waived s 5[a]

Justice of the peace s s 9, 20

Juvenile proceedings s s 11, 17

Kidnapping s 18
Larceny s s 3-5, 7[b], 8[c], 10-14, 18-21, 24

*34638 Law enforcement officer, battery on s 6

Leave to reinstate prior instrument s s 10, 22

Liquor, driving under influence s s 7[a], 16

Mail stolen s 5[a]


Manslaughter s s 14, 16, 21

Marijuana offense s s 5[c], 7[a]

Misconduct of prosecutor s 24[b]

Misdemeanor/felony inconsistency s 16

Money obtained by false pretenses s s 5[c], 6

Motorcyclist's death s 18

Motor vehicles s s 5[c], 6, 7[a], 15[b], 16, 18

Murder s s 5-7, 14, 15[a], 16, 18, 20, 21, 24[a]

Name erroneous in indictment s 7[b]

Narcotics offense s s 5, 7[a], 13, 15[a], 16, 18, 19, 22

Negligent homicide s 18

New evidence or facts s s 6, 21

Obscene material distribution s 7[b]

Obtaining money by false pretenses s s 5[c], 6

Official misconduct s 5[a]

Ordinance, validity s 15[b]

Perjury s 20

Pistol license s 5[a]

Police officer, assault on s 5[a]

Pornography distribution s 7[b]

Practice pointers s 2[b]

Prescription forgery s 22

Prima facie case, failure to state s 21

Prison confinement s s 3 et seq.

Probable cause lacking s s 14, 21

Prosecution responsible for termination of instrument s s 5-11

Rape s 5[c]

Receiving stolen property s s 5[a], 7[a]


Recording of instrument in wrong court s s 9, 23

Related matters s 1[b]

Resisting arrest s 7[a]

Retaliation against witness s 5[a]

Revocation of license s 6
Robbery s s 3, 4, 10-14, 20

Scope of annotation s 1[a]

Sex offenses s s 5[c], 7[a], 19

Signature s 19

Stay of proceedings s 19

Stimulant sale s 16

Stolen property s s 5[a], 7[a], 10, 21

Summary s 2

Suppression of evidence s s 5[c], 19

Tampering with witness s 5[a]

Theft s s 3-5, 7[b], 8[c], 10-14, 18-21, 24

Traffic and automobiles s s 5[c], 6, 7[a], 15[b], 16, 18

Trespass s 24[a]

Validity of prior instrument s s 7, 15, 19

Venue improper s 5[c]

Waiver of rights s s 5, 12, 15[b]

Weapons offense s s 5[a], 10, 11

Witness' availability s s 8, 20

TABLE OF JURISDICTIONS REPRESENTED

UNITED STATES

U.S.C.A. Const Amend 6. See s 6

8 U.S.C.A. s 1324(a). See s 5[b]

18 U.S.C.A. ss 2, 3161. See s 5[b]

18 U.S.C.A. ss 922(g)(1), 3161(b), 3162(a)(1). See s 3

18 U.S.C.A. s 3161. See ss 5[b, c], 12, 13

18 U.S.C.A. ss 3161 et seq. See s 4

*34639 18 U.S.C.A. s 3161 et seq.. See s 13

18 U.S.C.A. s 3161(a). See s 3


18 U.S.C.A. s 3161(b). See s 11

18 U.S.C.A. s 3161(c). See ss 4, 5[a]

18 U.S.C.A. s 3161(c)(1). See s 5[a, b]

18 U.S.C.A. s 3161(d). See ss 6, 12, 13

18 U.S.C.A. s 3161(d)(1). See s 12


18 U.S.C.A. s 3161(e). See ss 4, 11

18 U.S.C.A. s 3161(h). See ss 5[b], 11

18 U.S.C.A. s 3161(h)(1)(F). See s 5[a]

18 U.S.C.A. s 3161(h)(6). See s 5[b]

. United States v McKay (1994, CA11 Fla) 30 F3d 1418, 8 FLW Fed C 569--s 5[b]

Garcia v. State, 947 P.2d 1363--s 24[a]

U.S. v. Alford, 142 F.3d 825--s 3

U.S. v. Barnes, 251 F.3d 251--s 4

U.S. v. Broadwater, 151 F.3d 1359--s 5[b]

U.S. v. Brown, 183 F.3d 1306--s 13

U.S. v. Carrasco, 257 F.3d 1045--s 3

U.S. v. Castillo-Pacheco, 53 F. Supp. 2d 55--s 11

U.S. v. Feng, 25 Fed. Appx. 635--s 11

U.S. v. Goodman, 36 F. Supp. 2d 947--ss 4, 5[c]

U.S. v. Harley, 39 Fed. Appx. 789--s 4

U.S. v. Hemmings, 258 F.3d 587--s 3

U.S. v. Howard, 63 F. Supp. 2d 728--s 6

U.S. v. Martinez, 47 F. Supp. 2d 906--s 4

U.S. v. O'Dell, 154 F.3d 358, 1998 FED App. 267P--s 5[c]

U.S. v. Osteen, 254 F.3d 521--s 5[b]

U.S. v. Perez, 217 F.3d 323--s 5[b]

U.S. v. Pitner, 307 F.3d 1178--s 11

U.S. v. Robinette, 177 F. Supp. 2d 279--s 4

U.S. v. Varela, 40 Fed. Appx. 490--s 12

United States v Arkus (1982, CA9 Cal) 675 F2d 245--s 5[b]

United States v Beal (1991, CA8) 940 F2d 1159--s 11

United States v Bergdoll (1976, DC Del) 412 F Supp 1308--s 5[a]

United States v Bergouignan (1985, CA11 Fla) 764 F2d 1503--s 4


United States v Bilsky (1981, CA6 Tenn) 664 F2d 613--s 5[b]

United States v Borum (1982, DC Dist Col) 544 F Supp 170--s 5[b]

United States v Colon (1993, DC Mass) 831 F Supp 912--s 13

United States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed Rules Evid Serv 454--ss
5[b], 12

United States v Duque (1995, CA9 Ariz) 62 F3d 1146, 95 CDOS 6224, 95 Daily
Journal DAR 10608--s 23
United States v Feldman (1985, CA7 Ill) 761 F2d 380, 18 Fed Rules Evid Serv 1,
84 ALR Fed 649--s 24[a]

*34640 United States v Flores (1974, CA2 NY) 501 F2d 1356--s 5[b]

United States v Fuesting (1988, CA7 Ind) 845 F2d 664--s 5[b]

United States v Gonzales (1990, CA5 Tex) 897 F2d 1312--ss 5[a], 11

United States v Hicks (1982, CA5 La) 693 F2d 32--s 5[b]

United States v Hillegas (1978, CA2 NY) 578 F2d 453--s 5[b]

United States v Kelly (1995, CA2 NY) 45 F3d 45--s 5[b]

United States v La Tender (1979, ED Wis) 464 F Supp 607--s 5[b]

United States v Leone (1987, CA8 Iowa) 823 F2d 246, 23 Fed Rules Evid Serv 751--
s 5[b]

United States v Magana-Olvera (1990, CA9 Wash) 917 F2d 401, 31 Fed Rules Evid
Serv 703--s 13

United States v Maloy (1993, MD Fla) 835 F Supp 1373--s 5[a]

United States v May (1985, CA6 Mich) 771 F2d 980--ss 4, 6, 10

United States v Mitchell (1983, CA1 Mass) 723 F2d 1040--s 5[a]

United States v Nava-Salazar (1994, CA7 Ill) 30 F3d 788--s 5[b]

United States v Nesbitt (1988, CA7 Ind) 852 F2d 1502--ss 5[c], 10

United States v Novak (1983, CA3 Pa) 715 F2d 810--s 5[a]

United States v Olivo (1995, CA10 Okla) 69 F3d 1057--s 5[b]

United States v Page (1988, CA8 Minn) 854 F2d 293--s 24[a]

United States v Pajari (1983, CA8 Minn) 715 F2d 1378--s 5[b]

United States v Pelini (1995, ND Ill) 896 F Supp 797--s 6

United States v Pereira (1978, ED NY) 463 F Supp 481--s 12

United States v Petak (1985, SD Tex) 623 F Supp 74--s 5[c]

United States v Ramos (1984, SD NY) 588 F Supp 1223--s 17

United States v Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920--s 5[b]

United States v Roy (1991, SD Ohio) 791 F Supp 179--s 3

United States v Salmon (1981, SD Tex) 504 F Supp 1270--s 5[b]

United States v Schoeneman (1995, ND Ill) 893 F Supp 820--s 4


United States v Sebastian (1977, WD NY) 428 F Supp 967--s 5[b]

United States v Taylor (1988, US) 101 L Ed 2d 297, 108 S Ct 2413--s 2[a]

United States v Thomas (1986, CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57 AFTR
2d 86-1215--ss 3, 4

United States v Vlahov (1995, ND Cal) 884 F Supp 354--s 3

United States v Williams (1994, CA5 Miss) 12 F3d 452--s 11

United States v Wilson (1991, MD Ga) 762 F Supp 1501--s 6


ALABAMA

Ringstaff v. State, 451 So. 2d 375--ss 11, 17

ALASKA

Koch v State (1982, Alaska App) 653 P2d 664--s 18

Peterson v State (1977, Alaska) 562 P2d 1350--s 5[a]

ARIZONA

State ex rel. Berger v Superior Court of County of Maricopa (1975) 111 Ariz 524,
534 P2d 266--s 14

State v Avriett (1975) 25 Ariz App 63, 540 P2d 1282--s 12

*34641 State v Edwards (1979) 122 Ariz 206, 594 P2d 72--s 14

State v Guerrero (1989, Ariz) 769 P2d 1014, 26 Ariz Adv Rep 27--s 5[a]

State v Gutierrez (1978, App) 121 Ariz 176, 589 P2d 50--s 13

State v Johnson (1976) 113 Ariz 506, 557 P2d 1063--s 7[b]

State v McDonald (1977) 117 Ariz 159, 571 P2d 656--s 24[a]

State v Million (1978) 120 Ariz 10, 583 P2d 897--s 5[c]

State v Pogue (1976) 113 Ariz 478, 557 P2d 163--s 5[c]

State v Rose (1978) 121 Ariz 131, 589 P2d 5--s 18

State v Soto (1977) 117 Ariz 345, 572 P2d 1183--s 14

State v Taylor (1976) 27 Ariz App 330, 554 P2d 926--s 20

ARKANSAS

Cox v State (1991) 304 Ark 234A, 803 SW2d 555--s 5[a]

Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115--s 5[b]

Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708--s 12

State v Washington (1981) 273 Ark 82, 617 SW2d 3--s 8[a]

Thornton v State (1994) 317 Ark 257, 878 SW2d 378--s 4

Williams v State (1980) 271 Ark 435, 609 SW2d 37--s 5[a]

CALIFORNIA

Bellizzi v Superior Court of Stanislaus County (1974) 12 Cal 3d 33, 115 Cal Rptr
52, 524 P2d 148--s 18
Crockett v Superior Court of Santa Clara County (1975) 14 Cal 3d 433, 121 Cal
Rptr 457, 535 P2d 321--s 13

People v Allen (1963, 3d Dist) 220 Cal App 2d 796, 34 Cal Rptr 106--s 11

People v Conway (1969, 2d Dist) 271 Cal App 2d 15, 76 Cal Rptr 251--s 12

People v Faulkner (1972, 1st Dist) 28 Cal App 3d 384, 104 Cal Rptr 625--s 11

People v Godlewski (1943) 22 Cal 2d 677, 140 P2d 381--s 13

People v Nelson (1964, 2d Dist) 228 Cal App 2d 135, 39 Cal Rptr 238--s 16
People v Wilkes (1960, 2d Dist) 177 Cal App 2d 691, 2 Cal Rptr 594--s 11

Rosenberg, Re Application of (1937) 23 Cal App 2d 265, 72 P2d 559--s 12

COLORADO

Amon v People (1979) 198 Colo 172, 597 P2d 569--s 7[a]

Ex parte Snyder (1942) 110 Colo 35, 129 P2d 672--s 9

Meehan v County Court (1988, Colo App) 762 P2d 725--s 4

People ex rel. C.O. (1994, Colo App) 870 P2d 1266--s 4

People v Dunhill (1977) 40 Colo App 137, 570 P2d 1097--s 5[c]

People v Kraemer (1990, Colo App) 795 P2d 1371--s 11

People v Scott (1980) 200 Colo 365, 615 P2d 680--s 6

People v Wilkinson (1976) 37 Colo App 531, 555 P2d 1167--s 5[c]

Rowse v District Court of County of Alamosa (1972) 180 Colo 44, 502 P2d 422--s
19

DELAWARE

Latson v State (1958, Sup) 51 Del 377, 146 A2d 597--s 15[a]

State v Johnson (1989, Del Super) 564 A2d 364--s 8[b]

DISTRICT OF COLUMBIA

Dickerson v United States (1994, Dist Col App) 650 A2d 680--s 5[b]

*34642 Givens v United States (1994, Dist Col App) 644 A2d 1373--s 5[b]

FLORIDA

Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687--s 5[a]

Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687, 20 FLW D 2573--s
3

Atkins v. State, 785 So. 2d 1219--s 11

Clark v State (1975, Fla App -4) 318 So 2d 513--ss 2[b], 5[a]

Coleman v Eaton (1989, Fla App -5) 540 So 2d 915, 14 FLW 799--s 13

Datema v Barad (1979, Fla App -3) 372 So 2d 193--s 5[a]

Dechaine v. State, 751 So. 2d 100--s 11

Dorian v State (1994, Fla) 642 So 2d 1359, 19 FLW S 511--ss 3, 5[a]


Genden v Fuller (1994, Fla) 648 So 2d 1183, 19 FLW S 559--s 5[a]

Gue v State (1974, Fla App -2) 297 So 2d 135--s 5[a]

Homer v State (1978, Fla App -3) 358 So 2d 1176--s 5[a]

State ex rel. Bird v Stedman (1969, Fla App -3) 223 So 2d 85--s 5[a]

State ex rel. Branch v Wade (1978, Fla App -1) 357 So 2d 473--s 6

State ex rel. Green v Patterson (1973, Fla App -2) 279 So 2d 362--s 5[a]
State ex rel. Williams v Cowart (1973, Fla App -3) 281 So 2d 527--s 5[a]

State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S 391--ss 5[a], 8[a]

State v Boren (1973, Fla App -3) 273 So 2d 415--s 5[a]

State v Boyd (1979, Fla App -2) 368 So 2d 54--s 5[a]

State v Dorian (1993, Fla App -3) 619 So 2d 311, 18 FLW D 856--s 8[b]

State v Frank (1991, Fla App -4) 573 So 2d 1070--s 15[b]

State v Jordan (1983, Fla App -2) 436 So 2d 291--s 5[a]

State v McFadden (1993, Fla App -4) 622 So 2d 483, 18 FLW D 1511--s 8[a]

State v Rheinsmith (1978, Fla App -2) 362 So 2d 698--s 5[a]

State v. Jackson, 784 So. 2d 1229--s 3

Stewart v State (1985, Fla App -1) 470 So 2d 101, 10 FLW 1394--s 11

Swanson v Love (1974, Fla App -2) 290 So 2d 112--s 5[a]

Williams v State (1993, Fla) 622 So 2d 477, 18 FLW S 393--s 5[a]

Williams v. State, 788 So. 2d 1123--s 3

Wright v State (1980, Fla App -5) 387 So 2d 1060--s 5[a]

GEORGIA

Banks v. State, 251 Ga. App. 421, 554 S.E.2d 500--s 4

Dean v State (1986) 180 Ga App 770, 350 SE2d 489--s 15[a]

Durham v State (1851) 9 Ga 306--s 7[a]

HAWAII

State v Balauro (1992) 73 Hawaii 70, 828 P2d 267--ss 5[b], 8[a]

State v Fair (1981) 63 Hawaii 314, 627 P2d 277--s 13

State v Holt (1984, Hawaii) 684 P2d 971--s 5[b]

State v Ikezawa (1993, Hawaii) 857 P2d 593--s 5[b]

State v Stone (1982) 65 Hawaii 308, 651 P2d 485--s 8[a]

*34643 IDAHO

State v Davidson (1957) 78 Idaho 553, 309 P2d 211--s 5[a]

State v Goodmiller (1963) 86 Idaho 233, 386 P2d 365--s 8[c]


State v. McKeeth, 38 P.3d 1275--s 3

ILLINOIS

Brooks v People (1878) 88 Ill 327--s 5[a]

Newlin v People (1906) 221 Ill 166, 77 NE 529--s 5[a]

People ex rel. Nagel v Heider (1907) 225 Ill 347, 80 NE 291--s 5[a]
People v Alvelo (1990, 1st Dist) 201 Ill App 3d 496, 147 Ill Dec 131, 559 NE2d
131--s 11

People v Austin (1990, 1st Dist) 195 Ill App 3d 17, 141 Ill Dec 731, 551 NE2d
1074--s 5[b]

People v Bauer (1979) 70 Ill App 3d 537, 27 Ill Dec 50, 388 NE2d 1013--s 10

People v Christensen (1983) 113 Ill App 3d 938, 69 Ill Dec 762, 448 NE2d 222--s
8[b]

People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d
1258--ss 5[b], 11

People v Decatur (1989, 1st Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548 NE2d
509--ss 5[b], 11

People v East-West Univ. (1994, Ill App 1st Dist) 202 Ill Dec 55, 637 NE2d 594--
s 10

People v Fosdick (1967) 36 Ill 2d 524, 224 NE2d 242--s 5[a]

People v Freedman (1987, 1st Dist) 155 Ill App 3d 469, 108 Ill Dec 165, 508 NE2d
326--s 11

People v Garcia (1978) 65 Ill App 3d 472, 22 Ill Dec 51, 382 NE2d 371--ss 20, 21

People v Gimza (1977) 56 Ill App 3d 477, 14 Ill Dec 82, 371 NE2d 1135--s 21

People v Hamby (1963) 27 Ill 2d 493, 190 NE2d 289--s 5[a]

People v Hatchett (1967) 82 Ill App 2d 40, 226 NE2d 97--s 5[a]

People v Howard (1990, 5th Dist) 205 Ill App 3d 702, 151 Ill Dec 113, 563 NE2d
1219--s 3

People v Nelson (1962) 25 Ill 2d 38, 182 NE2d 704--s 10

People v O'Malley (1982) 108 Ill App 3d 823, 64 Ill Dec 333, 439 NE2d 998--s
24[b]

People v Parker (1978) 59 Ill App 3d 302, 16 Ill Dec 592, 375 NE2d 465--s 5[a]

People v Rodgers (1982) 106 Ill App 3d 741, 62 Ill Dec 165, 435 NE2d 963--s 10

People v Sanders (1980) 86 Ill App 3d 457, 41 Ill Dec 453, 407 NE2d 951--s 11

People v Stuckey (1967) 83 Ill App 2d 137, 227 NE2d 135--s 7[a]

People v Toney (1978) 58 Ill App 3d 364, 15 Ill Dec 912, 374 NE2d 695--ss 20, 21

People v Wey (1976) 34 Ill App 3d 916, 341 NE2d 83--s 5[b]

People v Witt (1928) 333 Ill 258, 164 NE 682--s 5[a]

People v Woodruff (1981) 88 Ill 2d 10, 58 Ill Dec 869, 430 NE2d 1120--s 11
People v Young (1991, 1st Dist) 220 Ill App 3d 488, 163 Ill Dec 290, 581 NE2d
241--s 5[b]

People v. Gooden, 296 Ill. App. 3d 205, 230 Ill. Dec. 584, 694 N.E.2d 215--s
5[c]

People v. Hillsman, 264 Ill. Dec. 263, 769 N.E.2d 1100--s 11

People v. Izquierdo-Flores, 266 Ill. Dec. 216, 773 N.E.2d 1286--ss 15[b], 17

People v. Quick, 321 Ill. App. 3d 392, 255 Ill. Dec. 157, 748 N.E.2d 1227--s
11

*34644 People v. Rievia, 307 Ill. App. 3d 846, 241 Ill. Dec. 674, 719
N.E.2d 1077--s 3

INDIANA

Bentley v State (1984, Ind) 462 NE2d 58--s 8[b]

Bently v State (1984, Ind) 462 NE2d 58--s 12


Bowers v. State, 717 N.E.2d 242--s 5[b]

Bridwell v State (1994, Ind App) 640 NE2d 437--s 5[b]

Fink v State (1984, Ind App) 469 NE2d 466--s 17

Gamblin v State (1991, Ind App) 568 NE2d 1040--s 3

Goudy v. State, 689 N.E.2d 686--s 4

Hornaday v State (1994, Ind App) 639 NE2d 303--s 3

Hughes v State (1985, Ind App) 473 NE2d 630--s 3

Johnson v State (1969) 252 Ind 79, 246 NE2d 181--s 5[a]

State ex rel. Back v Starke Circuit Court (1979) 271 Ind 82, 390 NE2d 643--ss
8[b], 12

State ex rel. Wernke v Superior Court of Hendricks County (1976) 264 Ind 646,
348 NE2d 644--s 7[a]

State v McCarty (1962) 243 Ind 361, 185 NE2d 732--s 15[b]

State v. Erlewein, 755 N.E.2d 700--s 18

Sweeney v. State, 704 N.E.2d 86--s 5[b]

IOWA

State v Bige (1924) 198 Iowa 573, 198 NW 510--s 5[c]

State v Fisher (1984, Iowa) 351 NW2d 798--s 11

State v Knox (1990, Iowa) 464 NW2d 445--s 6

State v Ruiz (1992, Iowa App) 496 NW2d 789--s 11

KANSAS

Derby v Lackey (1988) 243 Kan 744, 763 P2d 614--s 5[b]

State v Clovis (1993) 254 Kan 168, 864 P2d 687--s 11

State v Cuezze (1979) 225 Kan 274, 589 P2d 626--s 6

State v Fink (1975) 217 Kan 671, 538 P2d 1390--s 17

State v Goss (1989) 245 Kan 189, 777 P2d 781--s 5[c]

State v Haislip (1983) 234 Kan 329, 673 P2d 1094--s 6

State v Hunt (1982) 8 Kan App 2d 162, 651 P2d 967--s 8[b, c]

State v Jamison (1991) 248 Kan 302, 806 P2d 972--s 7[b]
State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891--s 8[b, c]

State v Rowland (1952) 172 Kan 224, 239 P2d 949, 30 ALR2d 455--s 5[c]

State v. Smallwood, 264 Kan. 69, 955 P.2d 1209--s 6

LOUISIANA

State v Roberts (1973, La) 278 So 2d 56--s 16

MARYLAND
Baker v. State, 130 Md. App. 281, 745 A.2d 1142--s 5[c]

Campbell v State (1991) 86 Md App 158, 586 A2d 32--s 5[c]

Clark v State (1993) 97 Md App 381, 629 A2d 1322--s 11

Lee v State (1985) 61 Md App 169, 485 A2d 1014--s 11

Pearson v State (1982) 53 Md App 217, 452 A2d 1252--s 23

State v Glenn (1984) 299 Md 464, 474 A2d 509--s 7[b]

MASSACHUSETTS

Commonwealth v Conefrey (1991) 410 Mass 1, 570 NE2d 1384--s 5[a]

*34645 MICHIGAN

People v Wickham (1993) 200 Mich App 106, 503 NW2d 701--ss 3, 4

MINNESOTA

State v Kasper (1987, Minn) 411 NW2d 182--s 8[a]

State v Le Flohic (1914) 127 Minn 505, 150 NW 171--s 13

MISSISSIPPI

Adams v State (1991, Miss) 583 So 2d 165--s 7[a]

De La Beckwith v. State, 707 So. 2d 547--s 17

Forrest v. State, 782 So. 2d 1260--s 3

Fulgham v. State, 770 So. 2d 1021--s 4

Jamison v. State, 741 So. 2d 359--s 6

Mitchell v. State, 792 So. 2d 192--s 24[b]

Moore v. State, 822 So. 2d 1100--s 15[a]

Scott v. State, 829 So. 2d 688--s 4

State v. Shumpert, 723 So. 2d 1162--s 11

MISSOURI

Fanning v State (1851) 14 Mo 386--s 4

State v Allen (1982, Mo App) 641 SW2d 471--s 4

State v Billings (1897) 140 Mo 193, 41 SW 778--s 4

State v Bolin (1983, Mo) 643 SW2d 806--s 19


State v Burlingame (1898) 146 Mo 207, 48 SW 72--s 4

State v Granger (1984, Mo App) 680 SW2d 258--s 5[a]

State v Jackson (1982, Mo App) 645 SW2d 725--s 4

State v Mask (1983, Mo App) 655 SW2d 832--s 4

State v Morton (1969, Mo) 444 SW2d 420--s 4


State v Schyhart (1917, Mo) 199 SW 205--s 4

State v Wigger (1906) 196 Mo 90, 93 SW 390--s 4

MONTANA

State v McGowan (1942) 113 Mont 591, 131 P2d 262--s 13

NEBRASKA

State v Batiste (1989) 231 Neb 481, 437 NW2d 125--s 8[b]

State v Costello (1977) 199 Neb 43, 256 NW2d 97--s 23

State v Dyer (1994) 245 Neb 385, 513 NW2d 316--s 5[b]

State v Sumstine (1991) 239 Neb 707, 478 NW2d 240--s 5[b]

State v. French, 262 Neb. 664, 633 N.W.2d 908--s 5[b]

State v. French, 9 Neb. App. 866, 621 N.W.2d 548--s 5[b]

State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322--s 4.5

State v. Karch, 263 Neb. 230, 639 N.W.2d 118--s 4

NEW HAMPSHIRE

State v Adams (1991, NH) 585 A2d 853--ss 4, 11

NEW MEXICO

State ex rel. Delgado v Stanley (1972) 83 NM 626, 495 P2d 1073--s 6

NEW YORK

People v Armstrong (1992, Crim Ct) 588 NYS2d 104--s 3

People v Auslander (1990, 3d Dept) 168 App Div 2d 759, 563 NYS2d 912--s 3

People v Bryant (1988, 2d Dept) 139 App Div 2d 750, 527 NYS2d 500--s 3

People v Buckmon (1983) 120 Misc 2d 355, 465 NYS2d 823--s 3

People v Carswell (1983) 120 Misc 2d 274, 465 NYS2d 687--s 3

People v Chapman (1992, 2d Dept) 185 App Div 2d 892, 587 NYS2d 379--s 3

*34646 People v Cibro Oceana Terminal Corp. (1990) 148 Misc 2d 149, 559 NYS2d
782--s 7[b]

People v Colon (1980, 1st Dept) 76 App Div 2d 805, 429 NYS2d 432--ss 3, 5[a]

People v Cortes (1992) 80 NY2d 201, 590 NYS2d 9, 604 NE2d 71--s 5[a]

People v Cullen (1979) 99 Misc 2d 646, 416 NYS2d 1011--s 22


People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736--ss 3, 21, 24[b]

People v Dearstyne (1995, App Div, 3d Dept) 626 NYS2d 879--s 3

People v Dorian (1963, 2d Dept) 18 App Div 2d 1008, 238 NYS2d 633--s 3

People v Ferrara (1979) 102 Misc 2d 253, 423 NYS2d 370--s 18

People v Garcia (1995, City Crim Ct) 163 Misc 2d 862, 622 NYS2d 1019--ss 3, 5[a]
People v Garrison (1983) 122 Misc 2d 22, 469 NYS2d 867--s 3

People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781--ss 15[b],
24[a]

People v Hall (1982, 4th Dept) 89 App Div 2d 788, 453 NYS2d 960--s 3

People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52--ss 3, 12

People v Jaswinder (1995, City Crim Ct) 165 Misc 2d 371, 632 NYS2d 923--s 5[a]

People v Jenkins (1983, 2d Dept) 92 App Div 2d 549, 459 NYS2d 119--s 3

People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937, 406 NE2d 793--s 3

People v Lugo (1983) 122 Misc 2d 316, 470 NYS2d 525--s 3

People v McBride (1984) 126 Misc 2d 272, 482 NYS2d 203--s 3

People v Osgood (1980) 52 NY2d 37, 436 NYS2d 213, 417 NE2d 507--s 22

People v Overton (1976) 88 Misc 2d 531, 389 NYS2d 253--s 11

People v Pappas (1987, 2d Dept) 128 App Div 2d 556, 512 NYS2d 493--s 3

People v Pessoa (1987) 136 Misc 2d 148, 518 NYS2d 543--s 3

People v Ramkisson (1982) 114 Misc 2d 535, 452 NYS2d 127--s 22

People v Rashtak (1995, City Crim Ct) 165 Misc 2d 236, 629 NYS2d 946--s 5[a]

People v Respress (1993, App Div, 4th Dept) 600 NYS2d 535--s 7[a]

People v Rivera (1979) 98 Misc 2d 986, 414 NYS2d 972--s 3

People v Skinner (1995, NY App Div 3rd Dept) 621 NYS2d 733--s 21

People v Toro (1989, 1st Dept) 151 App Div 2d 142, 546 NYS2d 842--s 3

People v Traficante (1988, 3d Dept) 143 App Div 2d 443, 532 NYS2d 582--s 3

People v Vasquez (1986) 133 Misc 2d 963, 509 NYS2d 458--s 3

People v White (1982) 115 Misc 2d 800, 454 NYS2d 792--s 3

People v Zirpola (1982, 4th Dept) 88 App Div 2d 758, 451 NYS2d 483--s 3

People v. Anderson, 676 N.Y.S.2d 549--s 11

People v. Blancero, 736 N.Y.S.2d 50--s 5[c]

People v. Cooper, 98 N.Y.2d 541, 750 N.Y.S.2d 258, 779 N.E.2d 1006--s 3

People v. Mascali, 189 Misc. 2d 549, 736 N.Y.S.2d 839--s 7[a]

People v. Peluso, 192 Misc. 2d 33, 745 N.Y.S.2d 845--s 5[a]


*34647 People v. Ruparelia, 723 N.Y.S.2d 843--s 5[a]

People v. Stone, 697 N.Y.S.2d 212--s 11

NORTH CAROLINA

State v Boltinhouse (1980) 49 NC App 665, 272 SE2d 148--s 21

State v Freeman (1983) 308 NC 502, 302 SE2d 779--ss 5[c], 6


State v Gross (1984) 66 NC App 364, 311 SE2d 41--s 11

State v Koberlein (1983) 309 NC 601, 308 SE2d 442--ss 11, 20

State v Lamb (1987) 84 NC App 569, 353 SE2d 857--s 11

State v Lamb (1988) 321 NC 633, 365 SE2d 600--ss 5[b], 10

State v Mills (1983) 307 NC 504, 299 SE2d 203--s 7[b]

State v Moore (1981) 51 NC App 26, 275 SE2d 257--s 7[b]

State v Parker (1986) 316 NC 295, 341 SE2d 555--s 5[c]

State v Simpson (1983) 60 NC App 436, 299 SE2d 257--s 5[c]

State v Ward (1980) 46 NC App 200, 264 SE2d 737--s 13

OHIO

Oregon, City of v of Oregon v. Kohne, 117 Ohio App. 3d 179, 690 N.E.2d 66--s
5[a]

State v Adams (1989) 43 Ohio St 3d 67, 538 NE2d 1025--s 3

State v Bonarrigo (1980) 62 Ohio St 2d 7, 16 Ohio Ops 3d 4, 402 NE2d 530--s 5[b]

State v Broughton (1991) 62 Ohio St 3d 253, 581 NE2d 541--s 5[b]

State v Cattee (1983) 14 Ohio App 3d 239, 14 Ohio BR 268, 470 NE2d 421--s 24[a]

State v DePue (1994, Athens Co) 96 Ohio App 3d 513, 645 NE2d 745--s 3

State v Justice (1976) 49 Ohio App 2d 46, 3 Ohio Ops 3d 109, 358 NE2d 1382--s 22

State v Lyons (1978) 61 Ohio App 2d 228, 15 Ohio Ops 3d 367, 401 NE2d 452--s
15[a]

State v Sauers (1977) 52 Ohio App 2d 113, 6 Ohio Ops 3d 87, 368 NE2d 334--s
24[a]

State v Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759--s
5[a, b]

State v. Myers, 97 Ohio St. 3d 335, 2002 -Ohio- 6658, 780 N.E.2d 186--ss 4, 5[c]

Westlake v Cougill (1978) 56 Ohio St 2d 230, 10 Ohio Ops 3d 382, 383 NE2d 599--s
15[b]

OKLAHOMA

Bowie v State (1995, Okla Crim) 906 P2d 759--s 5[c]

OREGON

State v Kent (1971) 5 Or App 297, 484 P2d 1109--s 7[a]


State v. Hampton, 152 Or. App. 742, 954 P.2d 1267--s 5[c]

State v. Waechter, 163 Or. App. 282, 986 P.2d 1281--s 3

PENNSYLVANIA

Commonwealth v Ardolino (1982) 304 Pa Super 268, 450 A2d 674--s 7[a]

Commonwealth v Bell (1976) 245 Pa Super 164, 369 A2d 345--s 17

Commonwealth v Braithwaite (1978) 253 Pa Super 447, 385 A2d 423--s 18

Commonwealth v Brocklehurst (1980) 491 Pa 151, 420 A2d 385--s 7[b]


Commonwealth v Cartagena (1978) 482 Pa 6, 393 A2d 350--s 21

Commonwealth v Davies (1985) 342 Pa Super 318, 492 A2d 1139--s 11

Commonwealth v De Marco (1984) 332 Pa Super 315, 481 A2d 632--s 7[c]

*34648 Commonwealth v Finfrock (1978) 257 Pa Super 555, 391 A2d 621--s 15[a]

Commonwealth v Frank (1979) 263 Pa Super 452, 398 A2d 663--s 9

Commonwealth v Garbett (1978) 256 Pa Super 488, 390 A2d 208--s 24[b]

Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447--ss 4, 15[a], 21

Commonwealth v Genovese (1981) 493 Pa 65, 425 A2d 367--s 21

Commonwealth v Gunter (1982) 299 Pa Super 432, 445 A2d 831--s 17

Commonwealth v Horner (1982) 497 Pa 565, 442 A2d 682--s 21

Commonwealth v Knox (1984) 330 Pa Super 136, 479 A2d 1--s 21

Commonwealth v Leatherbury (1982) 499 Pa 450, 453 A2d 957--s 20

Commonwealth v Lowe (1978) 255 Pa Super 78, 386 A2d 144--s 20

Commonwealth v Mumich (1976) 239 Pa Super 209, 361 A2d 359--s 19

Commonwealth v Navarro (1982) 499 Pa 279, 453 A2d 308--s 8[b]

Commonwealth v Poindexter (1982) 301 Pa Super 454, 447 A2d 1387--s 21

Commonwealth v Powell (1978) 257 Pa Super 522, 390 A2d 1360--s 22

Commonwealth v Sadler (1982) 301 Pa Super 228, 447 A2d 625--s 17

Commonwealth v Satchell (1982) 306 Pa Super 364, 452 A2d 768--s 17

Commonwealth v Sires (1981) 284 Pa Super 50, 424 A2d 1386--s 5[a]

Commonwealth v Weitkamp (1978) 255 Pa Super 305, 386 A2d 1014--s 20

Commonwealth v Whitaker (1976) 467 Pa 436, 359 A2d 174--s 5[a]

Commonwealth v Whiting (1985, Pa) 500 A2d 806--s 5[c]

SOUTH CAROLINA

Hunter v Patrick Constr. Co. (1986) 289 SC 46, 344 SE2d 613--s 21

SOUTH DAKOTA

State v Tiedeman (1988, SD) 433 NW2d 237--s 12

State v. Karlen, 1999 SD 12, 589 N.W.2d 594--s 4


TEXAS

Armstead v State (1984, Tex App El Paso) 677 SW2d 266--ss 5[c], 24[a]

Carr v State (1984, Tex Crim) 733 SW2d 149--s 11

Cockrell v State (1982, Tex App Fort Worth) 632 SW2d 664--s 5[b]

Cole v State (1983, Tex Crim) 650 SW2d 818--s 5[b]


Durbin v State (1986, Tex App El Paso) 716 SW2d 131--ss 11, 17

Durrough v State (1981, Tex Crim) 620 SW2d 134--s 5[b]

Garcia v State (1984, Tex App Corpus Christi) 673 SW2d 696--s 7[a, b]

Griffith v. State, 976 S.W.2d 686--s 5[b]

Johnson v State (1982, Tex App Dallas) 632 SW2d 658--s 5[b]

Presley v State (1985, Tex App Fort Worth) 686 SW2d 764--s 11

Santibanez v State (1986, Tex Crim) 717 SW2d 326--s 7[a]

Thibodeaux v State (1987, Tex App Houston (14th Dist)) 726 SW2d 601--s 11

Turner v State (1982, Tex App Houston (1st Dist)) 646 SW2d 485--s 5[a]

Vanderbilt v State (1981, Tex Crim) 629 SW2d 709--s 5[b]

*34649 Washington v State (1984, Tex App Dallas) 677 SW2d 142--ss 5[b], 11

VERMONT

State v Snide (1984) 144 Vt 436, 479 A2d 139--s 8[b, c]

VIRGINIA

Ashby v. Com., 33 Va. App. 540, 535 S.E.2d 182--ss 5[c], 6

Brooks v Peyton (1969) 210 Va 318, 171 SE2d 243--s 4

Dulin v Commonwealth (1895) 91 Va 718, 20 SE 821--s 24[a]

Harris v. Com., 520 S.E.2d 825--s 5[b]

Jackson v. Com., 255 Va. 625, 499 S.E.2d 538--s 17

Mealy v Commonwealth (1952) 193 Va 216, 68 SE2d 507--s 12

Miller v Commonwealth (1977) 217 Va 929, 234 SE2d 269--s 4

Presley v Commonwealth (1986) 2 Va App 348, 344 SE2d 195--ss 4, 19

Riddick v Commonwealth (1996) 22 Va App 136, 468 SE2d 135--s 4

Willis v. Com., 556 S.E.2d 60--s 11

WASHINGTON

State v Anderson (1980) 94 Wash 2d 176, 616 P2d 612--s 6

State v Estabrook (1993) 68 Wash App 309, 842 P2d 1001--s 5[b]

State v Hansen (1894) 10 Wash 235, 38 P 1023--s 5[c]


State v Matlock (1980) 27 Wash App 152, 616 P2d 684--s 19

State v Peterson (1978) 90 Wash 2d 423, 585 P2d 66--s 5[a]

State v Wieman (1978) 19 Wash App 641, 577 P2d 154--ss 5[b], 22

WEST VIRGINIA

State ex rel. Farley v Kramer (1969) 153 W Va 159, 169 SE2d 106--s 15[a]
State v Crawford (1919) 83 W Va 556, 98 SE 615--s 5[a]

State v McIntosh (1918) 82 W Va 483, 96 SE 79--s 12

WYOMING

Alicea v. State, 13 P.3d 693--s 4

Wehr v State (1992, Wyo) 841 P2d 104--s 8[b]

ARTICLE

I. Preliminary Matters

s 1. Introduction

[a] Scope

This annotation [FN1] collects and discusses the state and federal cases in
which the courts have considered what effect the
dismissal, nolle prosequi, withdrawal, abandonment, supersession, or other
termination of an indictment, information, complaint, or
other accusatory instrument has in determining when a statute providing for a
period of time within which a defendant must be
brought to trial starts to run in relation to a subsequent accusatory instrument
charging the defendant with the same crime, or
another crime based on the same criminal conduct, which gave rise to the
terminated accusatory instrument.

This annotation deals with cases in which the termination of the accusatory
instrument took place before the defendant was
brought to trial; therefore, cases involving a mistrial, a granting of a motion
for a new trial, or a reversal of a conviction on
appeal and remand for a new trial are excluded. [FN2]

Since relevant statutes are included only to the extent that they are reflected
in the reported cases within the scope of this
annotation, the reader is advised to consult the latest enactments of pertinent
jurisdictions.

[b] Related matters

Issuance or service of state-court arrest warrant, summons, citation, or other


process as tolling criminal statute of
limitations. 71 ALR4th 554.

Limitations on state prosecuting attorney's discretion to initiate prosecution


by indictment or by information. 44 ALR4th 401.

Waiver of right to counsel by insistence upon speedy trial in state criminal


case. 19 ALR4th 1299.

*34650 Continuances at instance of state public defender or appointed counsel


over defendant's objections as excuse for denial
of speedy trial. 16 ALR4th 1283.
Adequacy of defense counsel's representation of criminal client regarding speedy
trial and related matters. 6 ALR4th 1208.

Delay between filing of complaint or other charge and arrest of accused as


violation of right to speedy trial. 85 ALR2d 980.

Waiver or loss of accused's right to speedy trial. 57 ALR2d 302.

When may dismissal for violation of Speedy Trial Act (18 U.S.C.A. ss 3161-3174)
be with prejudice to government's right to
reinstate action. 98 ALR Fed 660.

Effect on operation of Speedy Trial Act (18 U.S.C.A. ss 3161 et seq.) of


indictment returned by grand jury whose term has
expired. 64 ALR Fed 916.

When is federal court justified, under Rule 48(a) of the Federal Rules of
Criminal Procedure, in denying government leave to
dismiss criminal charges. 48 ALR Fed 635.

Excludable periods of delay under Speedy Trial Act (18 U.S.C.A. ss 3161-3174).
46 ALR Fed 358.

Accused's right to speedy trial under Federal Constitution--Supreme Court cases.


71 L Ed 2d 983.

s 2 Summary and comment

[a] Generally
Under the provisions of the Sixth Amendment to the United States Constitution
and of the constitutions of most of the states, an
accused in a criminal proceeding is guaranteed the right to a speedy trial. [FN3]
In an effort to clarify this constitutional
guarantee, the federal government and a number of the state governments have
enacted statutes and rules that specify the period of
time within which an accused must be brought to trial after being arrested or
charged with a crime. In computing the time within
which the trial must be held, these statutes and rules variously mark the starting
point of the time period as the filing or
service of the accusatory instrument, the accused's arrest for the crime, or the
accused's arraignment under the accusatory
instrument. [FN4]

If an accused is eventually brought to trial under the original accusatory


instrument, there should be little difficulty in
establishing when the statutory speedy trial period began to run on that
instrument. However, situations often arise in which the
original accusatory instrument is for some reason dismissed or otherwise
terminated and a new accusatory instrument charging the
same crime, or another crime based on the same criminal activity, is brought to
replace the original instrument. The question then
arises as to when the statutory time period began to run in relation to that
subsequent accusatory instrument. The answer to this
question is often crucial in determining whether the accused received a speedy
trial within the statutory requirements. The courts
that have considered this problem have all reached one of three alternative
conclusions ( s s 3-24, infra). The first is that the
statutory speedy trial period that began to run under the original accusatory
instrument continued to run despite the termination
of that instrument and its replacement with a subsequent instrument. The second
solution is that, while the speedy trial period
began under the initial instrument, the statutory period ceased to run, or was
tolled, at the time of the termination of the prior
accusatory instrument and only began to run again with the filing of the
subsequent accusatory instrument or the accused's arrest
or arraignment thereunder. [FN5] The third and final answer to the question of
when the speedy trial period begins to run in
relation to the subsequent accusatory instrument is that the termination of the
prior accusatory instrument concluded prosecution
of those charges and the bringing of a new accusatory instrument started an
entirely new prosecution in which the speedy trial
period commenced to run anew as if there had never been a prior prosecution for
the same offense.

In at least one jurisdiction, the courts have concluded as a general rule that
the speedy trial period is to be computed from the
filing of the original accusatory instrument and is neither tolled nor started
anew by the termination of the original instrument
and its replacement with a subsequent instrument charging the same crime or based
on the same criminal activity ( s 3, infra).
Other courts have relied on the fact that the termination of the prior accusatory
instrument was caused by or was attributable to
the prosecution in reaching the conclusion that the speedy trial period was not
interrupted by the termination of the prior
instrument ( s 5[a], infra). A similar conclusion has been reached in a case
where the prosecution obtained a subsequent
accusatory instrument based on additional evidence ( s 6, infra) and in cases
where the prosecution disposed of the prior
instrument on the ground that it was defective or invalid ( s 7[a], infra) or on
the ground that one of its potential witnesses was
unavailable ( s 8[a], infra). The speedy trial period has also been deemed to
have continued to run where the defendant obtained
the dismissal of the prior accusatory instrument and the subsequent instrument was
not filed until after the speedy trial period
expired ( s 12, infra), where the defendant's motion resulted in the quashal of a
defective accusatory instrument ( s 15[b],
infra), and where a new accusatory instrument was filed after the defendant's
payment of a traffic fine resulted in termination of
a prior accusatory instrument based on the same episode ( s 18, infra). In those
cases in which the prior accusatory instrument
was dismissed by the court for failure of the state to prosecute, the speedy trial
period has likewise been computed from the time
of the original accusatory instrument ( s 22, infra). The same result has been
reached where the prior accusatory instrument was
dismissed on the ground of an improperly scheduled preliminary hearing ( s 24[b],
infra).

*34651 The running of the speedy trial statutes has been held to have been
tolled during the time between the termination of
the prior accusatory instrument and the applicable starting point under the
subsequent instrument where the prior accusatory
instrument was terminated by the prosecution ( s 5[b], infra), the termination by
the prosecution was due to the unavailability of
a state witness ( s 8[b], infra) or a lack of evidence sufficient to convict ( s
11, infra), the prior accusatory instrument was
terminated on the defendant's motion on the ground that the prior instrument was
invalid ( s 15[b], infra), or the prior instrument
was dismissed by the court due to a defect in the instrument ( s 19, infra), the
failure of the complaining witness to appear at a
preliminary hearing ( s 20, infra), lack of prosecution by the state ( s 22,
infra), or prosecutorial misconduct before the grand
jury ( s 24[b], infra).

Some jurisdictions have adopted a general rule that the statutory speedy trial
period begins to run anew from the time of the
subsequent accusatory instrument and that the time expended under prior accusatory
instruments is to be disregarded in computing
the time elapsed for speedy trial purposes ( s 4, infra). In other cases the
courts have likewise held that the statutory speedy
trial period started over again from the time of the applicable proceedings under
the subsequent accusatory instrument ( s s 5[c],
12, 18, infra). The same conclusion was reached in cases in which the prosecution
terminated the prior accusatory instrument and
the subsequent accusatory instrument was based on new evidence or additional facts
( s 6, infra). In other cases in which the
prior accusatory instruments were allegedly defective or invalid, the courts held
that the speedy trial periods ran anew under the
subsequent accusatory instruments ( s s 7[b], 15[a], 19, infra). In cases in
which the prior accusatory instruments were
terminated after prosecution witnesses became unavailable to testify, the courts
held that the speedy trial periods began to run
anew from the time of the subsequent accusatory instruments ( s s 8[c], 20,
infra). In situations in which the prior and
subsequent accusatory instruments were filed in different courts, the courts have
held that the subsequent accusatory instrument
started the speedy trial period running anew ( s s 9, 23, infra). The termination
of the prior accusatory instrument with leave of
the prosecution to reinstate the charges has been held to commence the running of
the speedy trial period with the subsequent
accusatory instrument ( s 10, infra). Likewise, in cases where the prior
accusatory instrument was terminated on speedy trial
grounds, the courts have held that the speedy trial period ran anew under the
subsequent accusatory instrument ( s 13, infra). In
cases in which the prior accusatory instruments were terminated on lack of
probable cause or lack of prima facie case grounds, the
speedy trial period was held to run anew with the subsequent accusatory instrument
( s s 14, 21, infra). The speedy trial period
was held to run anew in cases in which the prior accusatory instrument charged the
accused with a felony and the subsequent
accusatory instrument charged the accused with a misdemeanor ( s 16, infra). A
new speedy trial period has also been held to
commence with a subsequent accusatory instrument in cases in which the
terminations of the prior accusatory instruments were
accompanied by factors other than those noted above and the termination of the
prior accusatory instrument was attributable to the
prosecution ( s 11, infra), the defendant ( s 17, infra), or neither of the
parties ( s 24[a], infra).

The dismissal of an indictment without prejudice forces the government to obtain


a new indictment if the government decides to
reprosecute, and it exposes the prosecution to dismissal on statute of limitations
grounds. United States v Taylor (1988, US) 101
L Ed 2d 297, 108 S Ct 2413, on remand (CA9) 854 F2d 1548.

[b] Practice pointers

Counsel should be aware that a waiver of a defendant's statutory speedy trial


rights [FN6] given while the original or prior
accusatory instrument was in effect may also be applied to a subsequent accusatory
instrument, thereby taking the subsequent
accusatory instrument out of the operation of the speedy trial statute and
requiring the defendant or counsel to make a demand for
a speedy trial under a subsequent accusatory instrument in order to reactivate the
defendant's statutory right to a speedy trial.
Counsel should also be aware that the statutory speedy trial rights of his client
may be reinvoked by either a motion for a speedy
trial or a motion for a discharge under the subsequent accusatory instrument.
[FN7]

*34652 II. General principles

s 3. View that statutory speedy trial period continues to run despite termination
of prior accusatory instrument

The following cases explicitly support the view that the speedy trial period
commences with the filing of the first accusatory
instrument and is not interrupted or tolled by the termination of that instrument
and the filing of a subsequent instrument
charging the same crimes or other crimes based on the same criminal activity.

US--United States v Vlahov (1995, ND Cal) 884 F Supp 354.

Fla--Dorian v State (1994, Fla) 642 So 2d 1359, 19 FLW S 511 (termination by


entry of nolle prosequi); Adams v State (1995, Fla
App -2) 659 So 2d 396, 20 FLW D 1687, 20 FLW D 2573 and related proceeding (Fla
App -2) 659 So 2d 399, 20 FLW D 1685 and related
proceeding (Fla App -2), 20 FLW D 2545.

Ill--People v Howard (1990, 5th Dist) 205 Ill App 3d 702, 151 Ill Dec 113, 563
NE2d 1219, app den (Ill) 156 Ill Dec 565, 571 NE2d
152; People v. Rievia, 307 Ill. App. 3d 846, 241 Ill. Dec. 674, 719 N.E.2d 1077
(1st Dist. 1999).

Ind--Hughes v State (1985, Ind App) 473 NE2d 630, later proceeding (Ind App) 508
NE2d 1289; Gamblin v State (1991, Ind App) 568
NE2d 1040; Hornaday v State (1994, Ind App) 639 NE2d 303, reh den (Oct 5, 1994)
and transfer den (Nov 30, 1994).

Mich--People v Wickham (1993) 200 Mich App 106, 503 NW2d 701 (if prosecution
voluntarily dismissed charge).

NY--People v Pappas (1987, 2d Dept) 128 App Div 2d 556, 512 NYS2d 493; People v
Bryant (1988, 2d Dept) 139 App Div 2d 750, 527
NYS2d 500, later proceeding (2d Dept) 143 App Div 2d 354, 532 NYS2d 500; People v
Traficante (1988, 3d Dept) 143 App Div 2d 443,
532 NYS2d 582, later proceeding (3d Dept) 147 App Div 2d 843, 538 NYS2d 331;
People v Toro (1989, 1st Dept) 151 App Div 2d 142, 546
NYS2d 842, app dismd without op 75 NY2d 818, 552 NYS2d 568, 551 NE2d 1246; People
v Auslander (1990, 3d Dept) 168 App Div 2d 759,
563 NYS2d 912; People v Chapman (1992, 2d Dept) 185 App Div 2d 892, 587 NYS2d 379,
app withdrawn 80 NY2d 1025; People v McBride
(1984) 126 Misc 2d 272, 482 NYS2d 203; People v Garcia (1995, City Crim Ct) 163
Misc 2d 862, 622 NYS2d 1019; People v Armstrong
(1992, Crim Ct) 588 NYS2d 104; People v Dearstyne (1995, App Div, 3d Dept) 626
NYS2d 879.

Ohio--United States v Roy (1991, SD Ohio) 791 F Supp 179 (where all charges in
both indictments relate to same alleged conduct);
State v DePue (1994, Athens Co) 96 Ohio App 3d 513, 645 NE2d 745.

Where the defendant is not brought to trial on a superseding indictment within


seventy nonexcludable days of the later of the
defendant's first appearance or the filing of the original indictment, the counts
in the superseding indictment that were contained
in the original indictment, or those that the double jeopardy clause requires to
be joined with them, are subject to dismissal
under Speedy Trial Act. 18 U.S.C.A. s 3161(c)(1). U.S. v. Alford, 142 F.3d 825
(5th Cir. 1998), reh'g denied, (July 14, 1998) and
cert. denied, 119 S. Ct. 514 (U.S. 1998).

Superseding indictment, which included four new charges as well as three


original ones, did not affect running of speedy trial
period with respect to the three original charges. United States v Thomas (1986,
CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57 AFTR
2d 86-1215, cert den (US) 479 US 853, 93 L Ed 2d 121, 107 S Ct 187, later
proceeding TC Memo 1988-454, 56 TCM 275.

*34653 Superseding indictment restating or correcting original charges does


not restart the 70-day statutory time period for
original charges under provision of Speedy Trial Act, requiring that defendant be
brought to trial within 70 days after defendant's
initial appearance. U.S.C.A. Const. Amend. 6; 18 U.S.C.A. s 3161(a). U.S. v.
Hemmings, 258 F.3d 587 (7th Cir. 2001).
There was no violation of the Speedy Trial Act when allegation that defendant
possessed bullets and shotgun shells was introduced
in the complaint and omitted from the original indictment, which mentioned only a
revolver , but superseding indictment for being a
felon in possession of a firearm or ammunition, filed more than 30 days after
arrest, added the bullets and shells, as the
Government asserted the same, single charge in the complaint and the original
indictment as in the superseding indictment, though
the original indictment omitted a factual allegation supporting the charge in the
complaint; there was no charge omitted from the
original indictment that was included in the superseding indictment. 18 U.S.C.A.
ss 922(g)(1), 3161(b), 3162(a)(1). U.S. v.
Carrasco, 257 F.3d 1045 (9th Cir. 2001).

The state's filing of a nolle prosequi does not toll the running of the speedy
trial period; however, charges may be refiled if
the speedy trial period has not run. State v. Jackson, 784 So. 2d 1229 (Fla.
Dist. Ct. App. 1st Dist. 2001).

There can be no recapture period when the state seeks to avoid the time periods
set forth in the speedy trial rule by
affirmatively abandoning charges against the defendant and then refiling charges
after expiration of the applicable speedy trial
period. West's F.S.A. RCrP Rule 3.191(a). Williams v. State, 788 So. 2d 1123
(Fla. Dist. Ct. App. 1st Dist. 2001).

Statutory time limitation of six months within which to provide defendant with
speedy trial is not renewed, absent a formal
dismissal and refiling of the original charges. I.C. s 19-3501. State v.
McKeeth, 38 P.3d 1275 (Idaho Ct. App. 2001), review
denied, (Jan. 28, 2002).

Date that new indictment was entered, rather than date that original indictment
was entered, was the critical date for statutory
speedy trial purposes, where defendant did not place in the record the date
original indictment was entered. West's A.M.C. s
99-17-1. Forrest v. State, 782 So. 2d 1260 (Miss. Ct. App. 2001).

People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937, 406 NE2d 793; People v Colon
(1980, 1st Dept) 76 App Div 2d 805, 429 NYS2d 432;
People v Zirpola (1982, 4th Dept) 88 App Div 2d 758, 451 NYS2d 483, mod on other
grounds 57 NY2d 706, 454 NYS2d 702, 440 NE2d 787;
People v Hall (1982, 4th Dept) 89 App Div 2d 788, 453 NYS2d 960; People v Jenkins
(1983, 2d Dept) 92 App Div 2d 549, 459 NYS2d 119,
later app (2d Dept) 104 App Div 2d 563, 479 NYS2d 270; People v Rivera (1979) 98
Misc 2d 986, 414 NYS2d 972; People v White (1982)
115 Misc 2d 800, 454 NYS2d 792; People v Carswell (1983) 120 Misc 2d 274, 465
NYS2d 687; People v Buckmon (1983) 120 Misc 2d 355,
465 NYS2d 823; People v Garrison (1983) 122 Misc 2d 22, 469 NYS2d 867 (misdemeanor
complaint replaced with information charging
violation); People v Lugo (1983) 122 Misc 2d 316, 470 NYS2d 525.

Although a different result was reached in an earlier New York case, [FN8] later
New York cases have held that the statutory
speedy trial period is computed from the original accusatory instrument in the
criminal action and is neither tolled nor started
anew by the termination of the original instrument and the bringing of a
subsequent accusatory instrument. Thus, affirming a
conviction for third-degree attempted robbery, the court, in People v Lomax (1980)
50 NY2d 351, 428 NYS2d 937, 406 NE2d 793, held
that the time periods under the speedy trial statute began to run from the date on
which the defendant was first arraigned and the
first accusatory instrument in the criminal proceeding was filed where that
instrument was subsequently dismissed and replaced with
a new indictment charging the same crimes. Interpreting the applicable speedy
trial statute, the court stated that there could be
only one criminal action for each set of criminal charges brought against a
particular defendant, even though the original
accusatory instrument was replaced or superseded during the course of the action,
and that the speedy trial statute required that
the time period be computed from the original charge. However, the court
concluded that the defendant was not entitled to a
dismissal even though he was not brought to trial within 6 months of the filing of
the original indictment where the defendant
failed to show the extent to which the prosecution's failure to be ready within
the statutory time period was attributable to
delays caused by the defendant's prior motions. The court noted that a
substantial portion of the delay was occasioned by motions
made in the defendant's behalf.

*34654 Operative readiness period under speedy trial statute was 90 days,
rather than 60 days, measured from filing date of
information, where complaint charging felonies and class A misdemeanors was
replaced, three weeks after it was filed, by
information charging only the remaining class A misdemeanors, and months later,
immediately prior to trial, the trial court granted
the People's motion to reduce the charges to class B misdemeanors; the subsequent
reduction to class B misdemeanors was not among
the exceptions enumerated in speedy trial statute provision listing specific
situations effectively altering the date a criminal
action is deemed to have commenced, and thus, it had no effect on the readiness
equation. McKinney's CPL s 30.30, subds. 1, 5(c).
People v. Cooper, 98 N.Y.2d 541, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002).

Sixty-day readiness period for misdemeanors, which was applicable to instrument


filed as felony complaint but converted to
misdemeanor complaint on October 2, was also applicable to indictment filed on
January 22, following dismissal of misdemeanor
complaint on January 9 pursuant to prosecution motion, even though January 22
indictment charged original felony offense once
again, since 61 days chargeable to prosecution had passed, and to permit filing of
January 22 indictment to resurrect six-month
readiness period applicable to felonies would have flouted purposes of speedy
trial statute. People v Vasquez (1986) 133 Misc 2d
963, 509 NYS2d 458.

Prosecution for misdemeanor third degree assault, superseding felony second


degree assault charge dismissed without prejudice by
presiding judge, fell within statute requiring prosecution to bring case to trial
either 90 days from filing of new information or
balance of six months allotted to original felony, whichever was shorter. People
v Pessoa (1987) 136 Misc 2d 148, 518 NYS2d 543.
See People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736, s 21.

See People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52 and app withdrawn 84
NY2d 868, s 12.

When new and additional charges arise from same facts as did original charge and
state knew of such facts at time of original
indictment, time within which trial is to begin on additional charge is subject to
same statutory limitations period that is
applied to original charge. State v Adams (1989) 43 Ohio St 3d 67, 538 NE2d 1025.

State cannot use a process of dismissal and reindictment to avoid its


obligation, under prisoner speedy trial statute, to bring
the inmate to trial within 90 days of when the district attorney receives a trial
demand. ORS 135.763. State v. Waechter, 163 Or.
App. 282, 986 P.2d 1281 (1999).

s 4. View that statutory speedy trial period starts anew under subsequent
accusatory instrument

The following cases explicitly support the view that the time expired under
prior accusatory instruments is not counted in
computing the speedy trial period and that the speedy trial statute applies only
to the last accusatory instrument charging the
same crimes or based on the same criminal conduct as the prior accusatory
instruments.

US--U.S. v. Martinez, 47 F. Supp. 2d 906 (M.D. Tenn. 1999); United States v


Schoeneman (1995, ND Ill) 893 F Supp 820 (different
charges); United States v Bergouignan (1985, CA11 Fla) 764 F2d 1503, later app
(CA11 Fla) 821 F2d 1498, reh den, en banc (CA11 Fla)
828 F2d 775 and cert den (US) 98 L Ed 2d 864, 108 S Ct 778; U.S. v. Goodman, 36 F.
Supp. 2d 947 (M.D. Ga. 1999).

Ark--Thornton v State (1994) 317 Ark 257, 878 SW2d 378.

Colo--Meehan v County Court (1988, Colo App) 762 P2d 725; People ex rel. C.O.
(1994, Colo App) 870 P2d 1266.

Ind--Goudy v. State, 689 N.E.2d 686 (Ind. 1997), reh'g denied, (Mar. 18, 1998).

Mich--People v Wickham (1993) 200 Mich App 106, 503 NW2d 701 (if charge
dismissed on motion of defendant).

*34655 NH--State v Adams (1991, NH) 585 A2d 853.

Va--Riddick v Commonwealth (1996) 22 Va App 136, 468 SE2d 135.

Mandate dismissing first indictment without prejudice for violation of the


Speedy Trial Act was not "the action occasioning the
trial" on a new indictment, so as to require trial on the new indictment within 70
days of the mandate, and the speedy trial clock
for the second trial began to run on the later of the filing date of the new
indictment or the defendant's first appearance before
a judicial officer with respect to that indictment. 18 U.S.C.A. s 3161(c). U.S. v.
Barnes, 251 F.3d 251 (1st Cir. 2001).
Seventy day limit of the Speedy Trial Act began to run upon order setting case
for retrial, not declaration of a mistrial, and
thus 144-day delay between declaration of mistrial and scheduling of retrial did
not violate defendant's statutory right to speedy
trial. 18 U.S.C.A. s 3161(e). U.S. v. Harley, 39 Fed. Appx. 789 (3d Cir. 2002).

The Speedy Trial Act is offense specific; if a subsequent indictment or


information charges a defendant with a new offense, the
subsequent filing starts a new, independent speedy trial period. 18 U.S.C.A. ss
3161 et seq. U.S. v. Robinette, 177 F. Supp. 2d
279 (D. Del. 2001).

See United States v May (1985, CA6 Mich) 771 F2d 980, s 6.

See United States v Thomas (1986, CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57
AFTR 2d 86-1215, cert den (US) 93 L Ed 2d 121, 107
S Ct 187, later proceeding TC Memo 1988-454, 56 TCM 275, s 3.

A speedy trial demand is effective as to repeated charges in re-indictments.


O.C.G.A. s 17-7-170(a). Banks v. State, 251 Ga.
App. 421, 554 S.E.2d 500 (2001).

Statutory 70-day speedy trial clock is stopped if charges against defendant are
dismissed, but will begin running again where it
left off if state refiles charges. Rules Crim. Proc., Rule 4(B)(1). Goudy v.
State, 689 N.E.2d 686 (Ind. 1997), reh'g denied,
(Mar. 18, 1998).

Where a defendant is reindicted for the same crime, rule requiring trial within
270 days of arraignment does not begin to run
until the arraignment on the reindictment. West's A.M.C. s 99-17-1. Fulgham v.
State, 770 So. 2d 1021 (Miss. Ct. App. 2000).

Court of Appeals could consider only passage of time from first trial to retrial
for purposes of defendant's speedy trial claim
since statutory speedy trial requirement that trial begin within 270 days of
arraignment was satisfied by defendant's first trial,
even though first trial ended in mistrial. West's A.M.C. s 99-17-1. Scott v.
State, 829 So. 2d 688 (Miss. Ct. App. 2002).
Fanning v State (1851) 14 Mo 386; State v Billings (1897) 140 Mo 193, 41 SW 778;
State v Burlingame (1898) 146 Mo 207, 48 SW 72;
State v Wigger (1906) 196 Mo 90, 93 SW 390; State v Schyhart (1917, Mo) 199 SW
205; State v Morton (1969, Mo) 444 SW2d 420; State v
Allen (1982, Mo App) 641 SW2d 471; State v Jackson (1982, Mo App) 645 SW2d 725;
State v Mask (1983, Mo App) 655 SW2d 832; Brooks v
Peyton (1969) 210 Va 318, 171 SE2d 243; Miller v Commonwealth (1977) 217 Va 929,
234 SE2d 269, cert den 434 US 1016, 54 L Ed 2d
762, 98 S Ct 735.

Thus, in State v Burlingame (1898) 146 Mo 207, 48 SW 72, the court pointed out
that the state had the right to file one or more
new indictments for the offense charged against defendant; that the statute
declares that the one first found shall be deemed
suspended by the second, and shall be quashed; that the finding of the last
indictment was, to all intents and purposes, the
presentation of a new case against defendant; and that under the statute there
must have been two continuances of the case by the
state under this indictment to have entitled defendant to be discharged.

*34656 Time chargeable to the State under the speedy trial act ceases, or is
tolled, during the interval between the State's
dismissal of the initial complaint in the county court and the refiling of a
complaint charging the defendant with the same crime
alleged in the previous, but dismissed, complaint. Neb. Rev. St. s 29-1207(1).
State v. Karch, 263 Neb. 230, 639 N.W.2d 118
(2002).

The period between a dismissal of charges without prejudice and the filing of a
subsequent indictment premised upon the same
facts is not counted for purposes of computing the speedy trial time period. R.C.
ss 2945.71 et seq. State v. Myers, 97 Ohio St.
3d 335, 2002 -Ohio- 6658, 780 N.E.2d 186 (2002).

See Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447, s 21.

The 180-day speedy trial period commences when the defendant has first appeared
on reindictment if the earlier indictment was
properly dismissed by a competent judicial officer, and the record does not reveal
evidence of a prosecutorial attempt to
circumvent the 180-day rule. SDCL 23A-44-5.1. State v. Karlen, 1999 SD 12, 589
N.W.2d 594 (S.D. 1999).

Likewise, in Brooks v Peyton (1969) 210 Va 318, 171 SE2d 243, the court stated
that where an original indictment is supplanted by
a second indictment, the terms contemplated by the speedy trial statute are to be
counted from the time of the second indictment.
Affirming the dismissal of a petition for a writ of habeas corpus that alleged
that the petitioner was denied the effective
assistance of counsel by his attorney's failure to move to quash the second
indictment on speedy trial grounds, the court stated
that there were no valid grounds on which to base a motion to quash since the
state was not barred from obtaining the second
indictment, which properly charged the offense of robbery.

See Presley v Commonwealth (1986) 2 Va App 348, 344 SE2d 195, s 19.
Refiling of same charges, after prosecution dismissed information with leave of
the court, caused the 120 day speedy trial rule
to begin to run anew. Rules Crim. Proc., Rule 48. Alicea v. State, 13 P.3d 693
(Wyo. 2000).

s 4.5. View that statutory speedy trial period is tolled during time between
termination of initial accusatory instrument and
filing of subsequent accusatory statement

The following case authority held that the applicable statutory speedy trial
period is tolled between the time of termination of
an initial accusatory statement and the filing of a subsequent accusatory
statement.

The time chargeable against the State under state's speedy trial act commences
with the filing of an initial information against
a defendant; the time chargeable to the State ceases, or is tolled, during the
interval between the State's dismissal of the
initial information and the refiling of an information charging the defendant with
the same crime alleged in the previous, but
dismissed, information. State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322 (2002).

III. Termination of prior accusatory instrument attributable to prosecution

s 5. Generally

[a] Held to continue to run

In the following cases wherein the termination of the prior accusatory


instrument was attributable in some way to the
prosecution, the courts held that the applicable speedy trial periods were not
interrupted or tolled by such termination in
relation to a subsequent accusatory instrument charging the same crime or another
crime based on the same criminal activity.

See also United States v Mitchell (1983, CA1 Mass) 723 F2d 1040 (disagreed with
on other grounds United States v Mastrangelo
(CA11 Fla) 733 F2d 793), where the court, affirming a conviction for conspiracy to
possess stolen mail and related offenses, noted
that it was the date of the original indictment, not the date of the superseding
indictment, that started the speedy trial clock
running where the only change from the original indictment was to state the actual
names of two codefendants listed under
fictitious names in the first indictment.
Affirming convictions on drug conspiracy charges, the court, in United States v
Novak (1983, CA3 Pa) 715 F2d 810, cert den (US)
79 L Ed 2d 694, 104 S Ct 1293 and (disagreed with on other grounds United States v
Mastrangelo (CA11 Fla) 733 F2d 793) and
(disagreed with on other grounds United States v Henderson (CA9 Cal) 746 F2d 619),
held that the speedy trial period ran from the
initial indictment where the conspiracy count in the superseding indictment
charged all of the defendants charged in the conspiracy
count of the original indictment, and the two conspiracy counts alleged the same
locus and were supported by some of the same overt
acts. The original indictment charged the defendants and two others with
conspiracy to possess with intent to distribute a
quantity of narcotics. A superseding indictment was subsequently filed which
joined those defendants and six other defendants in
an enlarged conspiracy and various related substantive offenses. The court stated
that whenever a court determined from the face
of the indictment that a superseding indictment charged an offense that was the
same as, or required to be joined with, an offense
charged in the original indictment within the meaning of the Double Jeopardy
Clause, trial on the offense in the superseding
indictment must be commenced within the time limitation for trial applicable to
the original indictment. However, the court
concluded that the defendants were not entitled to dismissal of the charges where
more than 40 days of the 110 days between the
filing of the original indictment and the motions to dismiss were excludable as
delays caused by pretrial motions under the Speedy
Trial Act (18 U.S.C.A. s 3161(h)(1)(F)), thus bringing the case within the 70-day
period mandated by the Act (18 U.S.C.A. s
3161(c)(1)).

*34657 Denying the defendants' motions to dismiss indictments, the court, in


United States v Bergdoll (1976, DC Del) 412 F
Supp 1308, held that the speedy trial period provided by the Speedy Trial Act (18
U.S.C.A. s 3161(c)) ran from the date of the
original indictments where the superseding indictments did not alter the
substantive offenses charged in the initial indictments.
The original indictments charged 24 of the 26 defendants with crimes related to a
drug conspiracy. The government subsequently
obtained superseding indictments that charged all 26 of the present defendants.
The court found that the changes in the
superseding indictments, such as the reduction of the number of indictments by
joinder of defendants and the addition of two
previously unindicted individuals, did not alter the speedy trial rights of the
defendants and that to decide otherwise would
permit the government to defeat the defendants' speedy trial rights by the mere
charade of new indictments. However, the court
concluded that the delays prior to trial did not entitle the defendants to
dismissal of the indictments.

Filing of superseding indictment did not affect speedy trial clock for offenses
charged in original indictment or any offense
required to be joined with original offenses; with respect to new charges added to
original ones in superseding indictment, motions
pending on original charges tolled running of speedy trial clock, regardless of
when speedy trial clock began to run on new charges
themselves, since superseding indictment had not mooted pending motions. United
States v Gonzales (1990, CA5 Tex) 897 F2d 1312.

Superseding indictment would be dismissed without prejudice where defendant was


not tried within 70 days after original
indictment was filed in violation of 18 U.S.C.A. s 3161(c)(1). Filing of
superseding six-count indictment, which added one count
to original indictment charging codefendant with possession of firearm by
convicted felon, did not restart 70-day period; defendant
was not charged in added count and offenses charged in remaining five counts of
superseding indictment, conspiracy to possess and
possession of 50 grams or more of crack cocaine with intent to deliver, were
identical to offenses charged in original indictment.
United States v Maloy (1993, MD Fla) 835 F Supp 1373.

In Peterson v State (1977, Alaska) 562 P2d 1350, the court, affirming a
conviction on four counts of second-degree murder, upheld
the conclusion that the speedy trial rule commenced running from the time of the
defendant's arrest for one count of first-degree
murder which gave rise to a complaint charging that crime and was not interrupted
by a superseding indictment which charged the
defendant with that same count of first-degree murder and three additional counts
of first-degree murder arising out of the same
criminal incident. The court noted that the speedy trial rule provided that the
time period commenced running at the time of the
initial arrest or filing of the charges, whichever was first, and that the later
filing of charges based on the same criminal
episode did not extend the speedy trial period unless the new charges were based
on evidence not available at the time of the
original filing. Finding that the evidence of all four murders in the case at bar
was available on the date of the defendant's
initial arrest, the court concluded that the 120-day speedy trial period was not
extended by the filing of the superseding
indictment. Although the defendant was not brought to trial within the 120-day
period, the court held that it was not an abuse of
discretion to relax the speedy trial rule where the delay amounted to only 15
days, the crimes involved were serious, there was no
identifiable prejudice to the defendant, and the investigation was difficult
because of the location of the crimes.

Though speedy trial period did not begin anew on filing of DUI charges (unlike
cases involving other types of charges), and
defendant's trial was held after period had elapsed, defendant's failure to object
until appeal of his conviction waived his right
to object. State v Guerrero (1989, Ariz) 769 P2d 1014, 26 Ariz Adv Rep 27.

Affirming a conviction for possession of a controlled substance, the court, in


Williams v State (1980) 271 Ark 435, 609 SW2d 37,
held that the defendant was not denied his right to a speedy trial where he was
brought to trial before the expiration of the third
full term of court following his original arrest as provided in the speedy trial
rule. Although both the defense and the
prosecution seemed to believe the original charges were nolle prossed, the record
did not reflect any such action. In any event,
the defendant was subsequently charged in an information on the same two counts of
controlled substance possession. Noting that
the speedy trial rule provides that the time commences to run from the date of the
defendant's arrest if he is held in custody or
released on bail to answer for the same offense or other offenses arising from the
same episode, the court stated that the late
filing of the subsequent information did not start the time running anew from the
day of the second arrest.

*34658 Twelve-month speedy trial period ran from date of defendant's arrest
under state rule where defendant was released on
bail on day of arrest, and state's entry of nolle prosequi did not serve to extend
that time period. Cox v State (1991) 304 Ark
234A, 803 SW2d 555.

See State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S 391, s 8[a].

Granting a writ of prohibition to prevent the relator from being tried under a
subsequent information, the court, in State ex
rel. Bird v Stedman (1969, Fla App -3) 223 So 2d 85, held that the prosecution
could not avoid the effects of the speedy trial rule
by dismissing the information and then subsequently refiling the same charge under
a new information where it was clear that the
nolle prosequi to the prior information was entered solely for the purpose of
avoiding the effect of the statute. The relator
filed three successive demands for speedy trial in three successive terms of court
pursuant to the speedy trial statute, but was
not tried within the third term. Prior to the expiration of that term the nolle
prosequi was entered on that information, and
another information was filed. Noting that the speedy trial statute referred to
the "crime" and not the "information" in
calculating the speedy trial period, the court stated that to hold otherwise would
allow an indefinite postponement of prosecution
for a crime by the simple expedient of a continuous entry of nolle prosequi and a
continuous refiling of informations charging the
same crime.

See also Clark v State (1975, Fla App -4) 318 So 2d 513, where the court,
affirming a conviction for embezzlement, held that,
although the speedy trial period ordinarily ran from the date of the defendant's
arrest under the initial indictment, the defendant
waived his rights where the waiver filed under the original indictment likewise
applied to the subsequent information based on the
same criminal episode or conduct. The defendant was originally indicted on two
counts of petit larceny and one count of grand
larceny. He thereafter filed a waiver of his right to be tried within the time
period set forth in the speedy trial statute. The
state later entered a nolle prosequi to the indictment and on the same day filed
three informations, one of which was based on the
same conduct or criminal episode as the indictment. The court concluded that the
defendant's waiver applied to the information
where the defendant made no motion for a speedy trial after the new information
was filed, which motion would have required that he
be tried within 60 days of the filing date of the motion. The court concluded
that the judgment of conviction under that
information was lawful where the state had tried the defendant within the 90-day
period after the denial of his motion for
discharge, which motion reinvoked the defendant's speedy trial rights under the
subsequent information.

Reversing a conviction for obtaining goods by use of a stolen credit card, the
court, in Wright v State (1980, Fla App -5) 387 So
2d 1060, held that the defendant had been denied his right to a speedy trial under
a statute requiring that a defendant be brought
to trial within 180 days after his arrest where the original charges had been
nolle prossed and the defendant had not been arrested
under the subsequent information until more than 3 years after the filing of that
information. The defendant was originally
arrested and charged with buying, receiving, and concealing stolen property.
These charges were dropped approximately 1 week later
and shortly thereafter an information based on the same criminal transaction was
filed in another county. After the original
charges were dropped, the defendant had moved from his residence but had notified
the post office and the telephone company of his
new address. However, he was not arrested until 3 years later because the
authorities did not obtain his new address. Stating
that the charges against the defendant involved his obtaining the same property
from the same store on the same day, the court
concluded that the 180-day speedy trial period continued to run from his arrest on
the original charges and that the nolle prosse
of those charges did not stop the running of the statutory time period. The court
also concluded that the defendant was
continuously available for trial since he had left his forwarding address and had
not evaded arrest in any way.

In State v Davidson (1957) 78 Idaho 553, 309 P2d 211, the court, rejecting the
defendant's claim that he was denied his statutory
right to a speedy trial, impliedly held that the speedy trial period was not
tolled or started anew by the replacement of the
original information with a new information on the motion of the prosecution.
Although the prosecution successfully moved to file
an amended information, the amended information was treated as a new information,
as though the original information had been
dismissed or had never existed, and the defendant was arraigned and pleaded anew
to the subsequent information. In determining the
validity of the defendant's speedy trial claim, the court calculated the three-
term requirement from the time the prior accusatory
instrument was filed against the defendant.

*34659 In Brooks v People (1878) 88 Ill 327, where an indictment was returned
at the March term, and as three counts were
quashed and a nolle entered as to the fourth, a new indictment was found at the
April term, for the same matter, and defendants
were tried and convicted at the July term, which the court construed as the fourth
term since the commitment, terms of criminal
court being monthly, it was held that a motion for discharge made at that term
prior to the trial should have been sustained, under
a statute providing that any person committed for a crime and not on bail, and not
tried at or before the second term of the court,
should be set at liberty unless the delay was occasioned by the prisoner, and
providing that the court might continue the case to
the third term if necessary to procure evidence. The court said that, as
affecting the present question, it must be regarded as if
there had been no dismissal of the first indictment, or as if the present
indictment had been found at the March term. The court
further observed that "any other construction would open the way for the complete
evasion of the statute, as the prosecuting
officer, upon the arrival of a second or third term, would have only to enter a
nolle prosequi to the indictment, have the
defendants held in custody until another indictment could be found, and thus
nullify the provision of the statute."

In Newlin v People (1906) 221 Ill 166, 77 NE 529, where defendant was indicted
March 7, 1905, and confined in jail from that time
until he was put upon trial on the first day of December, 1905, under a later
indictment which had been returned on the 21st day of
November 1905, charging the same offenses, burglary and larceny, as the first
indictment, which had been disposed of by nolle
proseque on November 25, 1905, and it appeared that after the first indictment
there was a March term and a June term of court, it
was held that defendant was entitled to be set at liberty, in view of a statute
providing, in so far as is herein pertinent, that
"any person committed for a criminal or supposed criminal offense, and not
admitted to bail, and not tried at some term of the
court having jurisdiction of the offense commencing within four months of the date
of commitment, or if there is no term commencing
within that time, then at or before the first term commencing after said four
months, shall be set at liberty by the court, unless
the delay shall happen on the application of the prisoner, or unless the court is
satisfied that due exertion has been made to
procure the evidence on the part of the people, and that there is reasonable
grounds to believe that such evidence may be procured
at the next term in which case the court may continue the case to the next term."
The court said that in view of the absolute
right conferred by the statute upon a person charged with crime and imprisoned in
jail, such statute implementing the
constitutional guaranty of a speedy trial, it is not sufficient for the
prosecution to say, in answer to an application under this
statute, that it was inconvenient or impossible for the judges of the circuit to
hold the term of the court within the time fixed
by the statute, nor was the fact that no petit jury was summoned at the June term
sufficient excuse for passing the case at that
term. It was pointed out that the circumstances that a second indictment was
found alleging the same offenses as the first, that a
nolle prosequi was entered as to the first indictment, and that defendant was
tried within four months after the return of the
second indictment, were without significance, the court stating that each
indictment was for the same felonies, and that if
defendant was entitled to be set at liberty while held under the first indictment,
he could not be rightfully arrested and held or
committed for the same offenses when charged by the second indictment.

And in People ex rel. Nagel v Heider (1907) 225 Ill 347, 80 NE 291, where
relator was committed in August, 1905, and indicted in
September of that year, and, instead of being discharged from custody as ordered
by the court on the ground of delay in bringing
him to trial, was, in January, 1906, retained in prison under a new indictment for
the same crime, and was thus not tried at a term
commencing within four months after his original commitment, it was held that the
relator, not having been tried within the time
limited by the statute considered in the preceding case, was entitled to be set at
liberty, the court stating that when a person
tried for a crime brings himself within the provisions of the statute, he is
entitled to be set at liberty and cannot afterward be
committed or held for the same offense when charged therewith by a second
indictment.

The rule that the provisions of the speedy trial statute were neither tolled nor
extended by the state's obtaining indictment
after indictment charging the same crime and thereby attempting to evade the
speedy trial limits was also recognized in People v
Witt (1928) 333 Ill 258, 164 NE 682; People v Hamby (1963) 27 Ill 2d 493, 190 NE2d
289, cert den 372 US 980, 10 L Ed 2d 145, 83 S
Ct 1116 and cert den 375 US 857, 11 L Ed 2d 84, 84 S Ct 120; and People v Hatchett
(1967) 82 Ill App 2d 40, 226 NE2d 97.

*34660 See People v Fosdick (1967) 36 Ill 2d 524, 224 NE2d 242, where the
court, affirming a conviction for rape, held that
the failure to bring the defendant to trial within the 120-day statutory period
from the date of his original incarceration under
the original complaint did not warrant his discharge where the delay of 6 days was
attributable to the defendant's waiver of a jury
trial on the day the trial before a jury was scheduled to commence. The defendant
was originally charged in a criminal complaint,
but that complaint was voluntarily dismissed by the state to permit prosecution of
the defendant on unrelated charges in another
county. An indictment charging the same crimes as two earlier complaints was
subsequently returned. Stating that neither the
dismissal and refiling of the same charge nor the voluntary relinquishment of the
defendant to another county could deny the
defendant his right to a speedy trial, the court concluded that there was nothing
to prevent his trial on the instant charges
within the 120 days of his original incarceration. The court stated that while
the waiver of a jury trial ordinarily serves to
expedite a trial, the last-minute waiver in this case had the opposite effect.

See also People v Parker (1978) 59 Ill App 3d 302, 16 Ill Dec 592, 375 NE2d 465,
in which the court, affirming a judgment
dismissing two indictments on speedy trial grounds, held that the subsequent
indictment was subject to the same statutory time
limitations as the initial indictment where the charges in the subsequent
indictment arose from the same facts that were the basis
for the first indictment and were known by the state at the time the initial
indictment was returned. The defendant was originally
charged in the first indictment with bribery and official misconduct. The
defendant repeatedly demanded a trial on the initial
indictment. Thereafter, the defendant was reindicted for theft, bribery, and
official misconduct, and subsequently moved to
dismiss both indictments on the ground that he was not brought to trial within 160
days after his demand for trial as required by
the speedy trial statute. Noting that the theft charge added to the subsequent
indictment arose from the same set of facts as the
other charges found in both indictments, the court concluded that the running of
the statutory period was not affected by the
reindictment on the subsequent offense.

In Johnson v State (1969) 252 Ind 79, 246 NE2d 181, the court, affirming a
conviction for carrying a pistol without a license,
held that where a prosecutor obtains a nolle prosequi and later refiles an
affidavit or indictment charging the same offense, the
period between the nolle and the refiling would be counted in resolving the speedy
trial issue as if the accused had been held by
recognizance during that period. However, the court would not include the time
between the filing of the first affidavit and the
nolle where the defendant did not show that during that time no continuance was
granted on his motion or that the delay was not due
to his acts. The speedy trial statute provided that a defendant held by
recognizance to answer an indictment or affidavit was to
be tried no later than three terms of court or else discharged unless any delay
was caused by his act or a continuance was obtained
on his motion. The court stated that it was up to the defendant to bring himself
within the statute and that he had failed to do
so by neglecting to present the record of the proceedings under the initial
affidavit that was nolle prossed by the state or to
offer a sworn statement concerning the period between the filing of the original
affidavit and the nolle.

Defendant could not successfully assert that he was denied right to speedy trial
under applicable statues, based on fact that
period of time between date of defendant's arraignment on first indictment and
date of trial, which occurred after third
indictment, exceed period required by statute, where defendant had agreed to
continuance of first indictment based on court
congestion, waiving his right to speedy trial on first indictment, where during
period of waiver, defendant made no objection to
any delay caused by continuance, and defendant made no objection or request any
clarification regarding length of continuance after
second indictment was returned; thus, defendant was rendered at least partially
responsible for delay. Commonwealth v Conefrey
(1991) 410 Mass 1, 570 NE2d 1384.

In prosecution for robbery, where defendant was first arraigned and brought to
trial, but state nolle prossed case during voir
dire, and subsequent indictment on same charges was issued, arraignment set and
trial had, defendant was not denied speedy trial
under state statue whether time was calculated under method of date of second
arraignment as starting or date of filing of nolle
prosequi, inasmuch as defendant was brought to trial within statutory period under
either method. State v Granger (1984, Mo App)
680 SW2d 258.

*34661 Ninety-day period between dismissal of original indictment due to


then-existing court rule and filing of new indictment
would not be excluded from time calculation for speedy trial under "exceptional
circumstance" exclusion where decision to dismiss
was not erroneous at time it was made, procedure was not "functional equivalent"
of appeal, and 90-day delay was not reasonable.
People v Cortes (1992) 80 NY2d 201, 590 NYS2d 9, 604 NE2d 71.

Reversing a judgment convicting the defendant of first-degree conspiracy, the


court, in People v Colon (1980, 1st Dept) 76 App
Div 2d 805, 429 NYS2d 432, held that the speedy trial statute commenced to run
from the time of the original felony complaint and
was not interrupted by the prosecution's obtaining a superseding indictment. The
original complaint charged the defendant with
sale of cocaine. The subsequent indictment was obtained by a separate
jurisdictional entity, the Special Narcotics Prosecutor, and
charged not only sale but also conspiracy to sell cocaine. Noting that the speedy
trial statute provided that a criminal action
was commenced by the filing of an accusatory instrument and that the action is
deemed commenced from the first instrument if more
than one is filed during the course of the action, the court concluded that the
speedy trial period ran from the filing of the
original complaint. Rejecting the prosecution's contention that the speedy trial
period on the conspiracy charge be calculated
from the date of the filing of the subsequent indictment since that charge was a
"new crime," the court held that such a finding
would frustrate the purposes of the Speedy Trial Act where the time frame of the
two charges was not significantly different, the
underlying substantive charges were the same, and the superseding indictment was
too intimately related to the original complaint
to permit a filing 6 months later.

Where felony complaint was replaced with or converted to misdemeanor accusatory


instrument charging misdemeanor, state was
required to be ready to proceed to trial within 90 days from filing of new
accusatory instrument or 6 months from filing of felony
complaint, whichever period was less. People v Garcia (1995, City Crim Ct) 163
Misc 2d 862, 622 NYS2d 1019.

Where felony charge was reduced to misdemeanor charge, and misdemeanor charge
was factually baseless, under statute, 60-day
speedy trial period began to run upon filing of felony charge. People v Rashtak
(1995, City Crim Ct) 165 Misc 2d 236, 629 NYS2d
946.

People could not announce partially ready for trial for purposes of speedy trial
statute on partially converted accusatory
instrument without first curing jurisdictional defects in the accusatory
instrument by converting, dismissing or severing the
unconverted charges. McKinney's CPL ss 30.30(1)(b), 170.30(1)(e). People v.
Peluso, 192 Misc. 2d 33, 745 N.Y.S.2d 845 (Crim. Ct.
2002).

Defendant's consent to adjournment of criminal possession of a hypodermic needle


charge did not extend time for state to file
revived accusatory instruments for dismissed charges for criminal sale or
marijuana, and thus period between defendant's alleged
consent and state's refiling of charges was chargeable to state for statutory
speedy trial purposes. McKinney's CPL s 30.30;
McKinney's Penal Law s 221.40. People v. Ruparelia, 723 N.Y.S.2d 843 (City Ct.
2001).

See State v Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759,
motion overr, infra s 5[b], in which the court
held that the time expended pending trial under the original indictment and the
time between dismissal and reindictment during
which the defendant was incarcerated or released on bail would be added to the
time expended under the subsequent indictment where
a nolle prosequi was entered on the original indictment or that indictment was
dismissed through the fault of the prosecution.

Days between date on which misdemeanor charges against defendant for driving
while under the influence (DUI) and for having
passenger on outside of vehicle were dismissed and date on which grand jury
returned no bill on felony vehicular homicide charge
against defendant, during which defendant was bound over to grand jury on felony
charge, were chargeable to state for
constitutional speedy trial purposes under statutory 90-day trial deadline for
misdemeanor charges, in proceeding in which
misdemeanor charges were subsequently refiled, where all three charged offenses
arose out of same event. U.S.C.A. Const. Amend. 6;
R.C. s 2945.71. City of Oregon v. Kohne, 117 Ohio App. 3d 179, 690 N.E.2d 66 (6th
Dist. Lucas County 1997).

*34662 See Commonwealth v Whitaker (1976) 467 Pa 436, 359 A2d 174, wherein
the court held that the prosecution's entry of a
nolle prosequi did not toll the running of the speedy trial statute where the
prosecution sought the dismissal to evade the speedy
trial rule. Two days before the expiration of the speedy trial period, the
prosecution moved for leave to enter a nolle prosequi,
which motion was granted over the defendant's objection. The prosecution
subsequently moved to vacate the nolle prosequi, and the
defendant, joining in that motion, also moved to dismiss all charges for failure
to afford him a speedy trial. Both motions were
thereafter granted. Affirming the dismissal, the court concluded that the
prosecution improperly sought an extension of time to
prosecute the defendant by using the nolle prosequi procedure and failing to
employ the provision of the speedy trial rule that
permits extensions of time after a hearing at which the defendant must be heard.
Affirming an order dismissing charges against the defendant for failure to bring
him to trial within the 180-day period
prescribed by rule, the court, in Commonwealth v Sires (1981) 284 Pa Super 50, 424
A2d 1386, held that the prosecution's withdrawal
of the original complaint did not constitute a proper dismissal and that the
prosecution by such tactics intended to evade the
speedy trial requirements of the rule. The defendant was originally charged with
theft by receiving stolen property. The original
complaint was later withdrawn by the arresting officer, but identical charges were
filed by the officer approximately 5 months
after the date of withdrawal of the first complaint. The defendant was
subsequently discharged and the second complaint dismissed
on the ground that the defendant had not been brought to trial within 180 days of
the scheduled date for the preliminary hearing on
the first complaint. The court first determined that the withdrawal of the first
complaint by the arresting officer did not
constitute a proper dismissal by an impartial tribunal. The court stated that
requiring dismissal by an impartial tribunal serves
to assure the defendant that charges were impartially and justly dismissed under
the first complaint. The court also concluded
that the withdrawal of the first complaint was an attempt by the prosecution to
avoid the mandate of the speedy trial rule since it
offered no facts other than its naked withdrawal of the complaint and reissuance
of a second complaint at a later date where the
only possible explanation offered was prosecutorial convenience.

Reversing a conviction for tampering with a witness, the court, in Turner v


State (1982, Tex App Houston (1st Dist)) 646 SW2d
485, revd on other grounds (Tex Crim) 662 SW2d 357, held that the speedy trial
period commenced to run under the indictment for
tampering with a witness from the time of the defendant's arrest for the crime of
retaliation against a witness where the facts
necessary to charge the defendant with tampering were available to the state at
the same time as those enabling it to arrest the
defendant for retaliation. The defendant was originally arrested and subsequently
indicted for retaliation against a witness.
Apparently abandoning the initial indictment, the prosecution subsequently
indicted the defendant for tampering with a witness and
reindicted him for retaliation. The defendant was not indicted for tampering with
a witness until 175 days after his arrest.
Noting that the state did not contend that the subsequent charge was based on any
newly available or newly discovered evidence, the
court concluded that there was no valid reason given as to why the defendant could
not have been indicted and tried on the
tampering charge within the 120-day statutory time limit where the offenses in the
two indictments were based on the same criminal
act.

Affirming the dismissal of a complaint and a subsequent information charging the


defendant with assault, the court, in State v
Peterson (1978) 90 Wash 2d 423, 585 P2d 66, held that the speedy trial period
began running on all the charges at the time of the
issuance of the original complaint. The defendant was originally charged with
assault on a police officer, but no further action
besides the issuance of the complaint was taken for over 1 year until the
defendant, who was in custody of federal authorities,
attempted to obtain a disposition on that charge. Approximately 2 years after the
filing of the initial complaint, an information
was filed charging the defendant with two counts of assault in the first degree,
one count being the same as that in the original
complaint and the other count connected with the same incident but relating to
another police officer. Although the speedy trial
statute required that a defendant be tried within 90 days, or 60 days if in
custody, following a preliminary appearance, the
defendant was never granted a preliminary appearance. The court concluded that
the failure to afford the defendant a preliminary
appearance could not be used to frustrate the spirit of the speedy trial rule and
that in such a situation the date of issuance of
the complaint would start the running of the time period. The court also held
that this conclusion applied to the new charge under
the information where that charge arose out of the same criminal incident as the
original charge, there being a preference for a
single disposition of all charges arising from one incident.

*34663 In State v Crawford (1919) 83 W Va 556, 98 SE 615, an indictment for


murder was found at the January term, 1911, and in
that term there was a continuance on motion of the accused until April 11, 1911.
At the April and July terms there were
continuances of the case on motions of the state, and at the next term, the third
after the date of the indictment, a nol pros was
entered. At the January term, 1916, a new indictment charging the murder alleged
in the first was returned, and on a motion for
discharge on the ground of detention without trial, under the former indictment,
for such a period of time as conferred right of
discharge from the offense, accused proved his readiness for trial at the April,
July, and October terms. Presumptively the state
was unable to show facts applying the exceptions prescribed by the statute,
inasmuch as it made no effort to do so, but merely
denied the right of accused to count the October term, 1911, because he was not
held for trial until it ended. The court, contrary
to the contention of the state, held that the October term should be counted,
saying in this connection: "To permit the state to
enter a nolle prosequi within the third term and reindict for the same offense,
and thus deprive the prisoner of the terms fully
elapsed as well as the term about to end, would make it possible to keep the
prisoner in custody or under recognizance for an
indefinite period of time, on charges of a single offense, unless, perhaps, he
could enforce a trial by the writ of mandamus."

The rule that the speedy trial period runs from the defendant's arrest under the
initial charges and is not interrupted where the
prosecution nolle prosses the original information and replaces it with another
information based on the same criminal episode or
charging the same crimes was also recognized in the following cases:

Fla--Williams v State (1993, Fla) 622 So 2d 477, 18 FLW S 393; Dorian v State
(1994, Fla) 642 So 2d 1359, 19 FLW S 511; Genden v
Fuller (1994, Fla) 648 So 2d 1183, 19 FLW S 559; State v Boren (1973, Fla App -3)
273 So 2d 415; State ex rel. Green v Patterson
(1973, Fla App -2) 279 So 2d 362; State ex rel. Williams v Cowart (1973, Fla App
-3) 281 So 2d 527, cert den (Fla) 286 So 2d 11;
Swanson v Love (1974, Fla App -2) 290 So 2d 112; Gue v State (1974, Fla App -2)
297 So 2d 135;; Homer v State (1978, Fla App -3)
358 So 2d 1176, cert den (Fla) 364 So 2d 886; State v Rheinsmith (1978, Fla App
-2) 362 So 2d 698;; State v Boyd (1979, Fla App -2)
368 So 2d 54, dismd without op (Fla) 372 So 2d 466;; Datema v Barad (1979, Fla App
-3) 372 So 2d 193; State v Jordan (1983, Fla App
-2) 436 So 2d 291; Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687,
related proceeding (Fla App -2), 20 FLW D 2573
and related proceeding (Fla App -2) 659 So 2d 399, 20 FLW D 1685 and related
proceeding (Fla App -2), 20 FLW D 2545.
NY--People v Jaswinder (1995, City Crim Ct) 165 Misc 2d 371, 632 NYS2d 923.

[b] Held to be tolled

The courts in the following cases, in which the termination of the prior
accusatory instrument was attributable to the
prosecution, held that the speedy trial period did not run during the period
between the dismissal of the prior accusatory
instrument and the filing of a subsequent accusatory instrument or the rearrest of
the defendant on the subsequent charges.

US--United States v Kelly (1995, CA2 NY) 45 F3d 45; United States v Nava-Salazar
(1994, CA7 Ill) 30 F3d 788, cert den (US) 130 L
Ed 2d 421; United States v Olivo (1995, CA10 Okla) 69 F3d 1057, supp op, on reh
(CA10 Okla) 80 F3d 1466 (filing of superseding
indictment that added additional conspiracy count and expanded existing conspiracy
count); U.S. v. Broadwater, 151 F.3d 1359 (11th
Cir. 1998), petition for cert. filed (U.S. Nov. 23, 1998).

*34664 Ark--Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

DC--Givens v United States (1994, Dist Col App) 644 A2d 1373.

Dist Col--Dickerson v United States (1994, Dist Col App) 650 A2d 680.

Hawaii--State v Ikezawa (1993, Hawaii) 857 P2d 593 (Hawaii Rules of Penal
Procedure exclude time between dismissal of charge by
prosecutor and arrest or filing of new charge, whichever is sooner, where later
charge is required to be joined with original
charge).

Ill--People v Young (1991, 1st Dist) 220 Ill App 3d 488, 163 Ill Dec 290, 581
NE2d 241.

Ind--Sweeney v. State, 704 N.E.2d 86 (Ind. 1998), cert. denied, 119 S. Ct. 2393
(U.S. 1999); Bridwell v State (1994, Ind App) 640
NE2d 437, transfer den (Nov 30, 1994).

Neb--State v Dyer (1994) 245 Neb 385, 513 NW2d 316; State v. French, 9 Neb. App.
866, 621 N.W.2d 548 (2001).

Ohio--State v Broughton (1991) 62 Ohio St 3d 253, 581 NE2d 541.

Va--Harris v. Com., 520 S.E.2d 825 (Va. 1999).

Wash--State v Estabrook (1993) 68 Wash App 309, 842 P2d 1001, review den 121
Wash 2d 1024, 854 P2d 1084 (90-day period for
bringing defendant to trial was tolled during three-year perioed of delay between
dismissal of complaint and its subsequent
refiling).

And the rule that where the initial indictment, information, or complaint is
dismissed on the government's motion, the running of
the Speedy Trial Act (18 U.S.C.A. s 3161) is tolled between the dismissal and the
filing of a new indictment, information, or
complaint charging the same crimes or based on the same criminal activity, was
also recognized in United States v Flores (1974, CA2
NY) 501 F2d 1356; United States v Hillegas (1978, CA2 NY) 578 F2d 453; United
States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed
Rules Evid Serv 454; United States v Bilsky (1981, CA6 Tenn) 664 F2d 613; United
States v Arkus (1982, CA9 Cal) 675 F2d 245; United
States v Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920; United States v Hicks
(1982, CA5 La) 693 F2d 32, cert den 459 US 1220, 75 L
Ed 2d 461, 103 S Ct 1226; United States v Pajari (1983, CA8 Minn) 715 F2d 1378;
United States v Sebastian (1977, WD NY) 428 F Supp
967, affd (CA2 NY) 562 F2d 211 and affd without op (CA2 NY) 578 F2d 1372; United
States v Salmon (1981, SD Tex) 504 F Supp 1270;
and United States v Borum (1982, DC Dist Col) 544 F Supp 170. [FN9]

Affirming a conviction for conspiracy to possess with intent to distribute


cocaine, the court, in United States v
Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920, held that the time between the
dismissal of the original indictment on the
government's motion and the defendant's first appearance to answer the subsequent
indictment charging her with the same crime was
not to be included in computing the time elapsed under the Speedy Trial Act (18
U.S.C.A. s 3161(c)(1)). The first indictment
charging the defendant with cocaine violations was in effect for 30 days before it
was dismissed. Approximately 2 months later the
defendant was again indicted, but her arraignment on the second indictment did not
take place for approximately 11 months because
of her absence from the country. Twenty-three days elapsed between her
arraignment on the second indictment and her appearance for
trial. Noting that the defendant was therefore under indictment for a total of 53
days pursuant to the two indictments, the court
concluded that she had been brought to trial within the 70-day requirement of the
Act.

*34665 When an indictment is dismissed on the government's motion, and the


defendant is thereafter reindicted on identical
charges, the seventy-day Speedy Trial Act period is calculated from the date of
the first arraignment, but the period during which
no indictment is pending is excluded from the seventy-day calculation. 18 U.S.C.A.
s 3161(h). U.S. v. Osteen, 254 F.3d 521 (4th
Cir. 2001).

Defendant's statutory right to a speedy trial was not violated by filing of


superseding indictment more than 30 days after
defendant's arrest; filing of first indictment charging defendant with aiding and
abetting in harboring undocumented alien was
sufficient to toll 30-day arrest-to-indictment clock for purposes of filing of the
superseding indictment charging defendant with
aiding and abetting the two codefendants in harboring two different undocumented
aliens. 18 U.S.C.A. ss 2, 3161; Immigration and
Nationality Act, s 274(a), 8 U.S.C.A. s 1324(a). U.S. v. Perez, 217 F.3d 323 (5th
Cir. 2000).

In considering defendant's claim that delay prior to his indictment violated his
rights under Speedy Trial Act (18 U.S.C.A. s
3161), district court properly ignored his arrest by state authorities and filing
of state charges (which were subsequently
dismissed); his speedy trial rights began to run, at the earliest, on date federal
complaint was filed and were tolled during
period between dismissal of complaint and reinstatement of charges by indictment.
United States v Fuesting (1988, CA7 Ind) 845 F2d
664.

Under Speedy Trial Act (18 U.S.C.A. s 3161 et seq.), in prosecution in which
government dismissed first indictment then later
reindicted defendant, running of speedy trial period resumed on the later of (1)
date of reindictment or (2) defendant's
arraignment under second indictment. United States v Leone (1987, CA8 Iowa) 823
F2d 246, 23 Fed Rules Evid Serv 751.

Where government filed superseding indictment in narcotics prosecution, period


between date superseding indictment was filed and
date defendant was arraigned on that indictment was excluded in determining
whether requirements of federal Speedy Trial Act had
been complied with; situation was analogous to period between dismissal of
indictment and issuance of new one, which was expressly
excepted by 18 U.S.C.A. s 3161(h)(6). United States v McKay (1994, CA11 Fla) 30
F3d 1418, 8 FLW Fed C 569.

If the government moves to dismiss a count following a mistrial, it does not get
a "fresh clock" on reindictment for purposes of
Speedy Trial Act; rather, the speedy trial time is tolled from the dismissal of
the original count until the reindictment. 18
U.S.C.A. s 3161 et seq. U.S. v. Broadwater, 151 F.3d 1359 (11th Cir. 1998),
petition for cert. filed (U.S. Nov. 23, 1998).

Eighteen-month period between dismissal of original charge by prosecutor and


indictment for same crime was excludable in
calculating allowable six-month delay period for speedy trial purposes. State v
Holt (1984, Hawaii) 684 P2d 971.

Where defendant was arrested during gambling raid on March 18, 1989, was served
with citation ordering him to appear for trial on
charge of gambling, and appeared for trial on April 19, 1989, where state's motion
to dismiss charge was granted, and where, on
March 19, 1990, defendant was indicted for promoting gambling in first degree and
possession of gambling device--charges arising
from same activity referred to in citation issued April 19, 1989--defendant was
not entitled to dismissal of indictment, despite
his claim that his constitutional rights to speedy trial had been violated and
that, under applicable rule of penal procedure, time
period during which no charges arising out of incident were pending was not
excludable. Applicable rule of penal procedure
excluded period of time when no charges that could have joined with dismissed
charges were pending against defendant, and time
accrued on first charge was applicable to second charge. State v Balauro (1992)
73 Hawaii 70, 828 P2d 267, State v Stone (1982) 65
Hawaii 308, 651 P2d 485, s 8[a], to extent it is inconsistent with rule of penal
procedure excluding period of time when no charges
that could have been joined with dismissed charges are pending against defendant
and providing that time accrued on first charge is
applicable to second charges.

*34666 Affirming a judgment discharging a defendant for failure to bring him


to trial within 120 days of incarceration as
required by statute, the court, in People v Wey (1976) 34 Ill App 3d 916, 341 NE2d
83, held that the speedy trial statute did not
run between the dismissal of the initial indictment and the defendant's arrest
under a subsequent indictment where the defendant
was released from custody after the initial indictment was nol prossed by the
prosecution and where there was no contention that
the defendant contributed to cause the delay or manipulated the proceedings to
evade trial. The defendant spent 75 days in custody
under the first indictment and 56 days under the second indictment. Since the
total period of incarceration exceeded the 120-day
speedy trial limit, the court concluded that the defendant was entitled to
discharge.

See People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d
1258, app den (Ill) 125 Ill Dec 225, 530 NE2d
253, s 11.

See People v Decatur (1989, 1st Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548
NE2d 509, app den (Ill) 142 Ill Dec 884, 553 NE2d
398, s 11.

Prosecution's request for nolle prosequi tolled statutory speedy trial term
where request was due to lack of laboratory analysis
for substance recovered from defendant, and there was no evidence of desire by
prosecution to harass or prejudice defendant.
People v Austin (1990, 1st Dist) 195 Ill App 3d 17, 141 Ill Dec 731, 551 NE2d
1074.

Where state dismissed original charges against defendant with 17 days remaining
on the 70-day period under speedy trial rule and
then refiled charges against defendant, speedy trial clock did not begin to run
again until defendant was taken into custody and
reincarcerated. Rules Crim. Proc., Rule 4(B). Bowers v. State, 717 N.E.2d 242
(Ind. Ct. App. 1999).

In determining whether time periods mandated by speedy trial statute had elapsed
with respect to misdemeanor driving under
influence of alcohol charges against defendant, time between dismissals and
refiling of case was to be disregarded. Derby v Lackey
(1988) 243 Kan 744, 763 P2d 614 (citing annotation).

Trial court erred in not dismissing arson information for violation of state
speedy trial statute, where, although state was
entitled to tolling of statute's six-month period for time between unexplained
dismissal of first information (charging
second-degree arson) and second information (charging first-degree arson on same
facts), defendant was entitled to tack time
expended during pendency of first information onto time expended while second
information was pending, with result that trial
starting five days after combined six-month period was untimely. State v Sumstine
(1991) 239 Neb 707, 478 NW2d 240.

The time chargeable to the State under the Speedy Trial Act ceases, or is
tolled, during the interval between the State's
dismissal of the initial information and the refiling of an information charging
the defendant with the same crime alleged in the
previous, but dismissed, information. Neb. Rev. St. ss 29-1207 to 29-1209. State
v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).

Though dismissal of first indictment was stated to be one "with leave,"


apparently referring to a statutory procedure for
dismissal that was applicable when a defendant failed to appear and that did not
terminate proceeding under indictment, "with
leave" language was mere surplusage since defendant had appeared; thus,
computation of speedy trial period was governed by statute
that specifically excluded days between district attorney's dismissal of first
indictment and reinstatement of charges by new
indictment nearly a year later. State v Lamb (1988) 321 NC 633, 365 SE2d 600.

Affirming a reversal of convictions for disorderly conduct and related offenses


on the ground that the defendants were denied
their statutory right to a speedy trial, the court, in State v Bonarrigo (1980) 62
Ohio St 2d 7, 16 Ohio Ops 3d 4, 402 NE2d 530,
held that, where a prosecutor obtains a felony indictment based on the same
conduct as was a previously nol prossed,
lesser-included misdemeanor charge, the time within which the defendant must be
brought to trial under the speedy trial statute
consists of whatever residue remains from the 270-day speedy trial period after
deducting the time expended under the misdemeanor
charge prior to the nolle prosequi. The defendants were originally charged in
complaints alleging that they committed the
misdemeanor of disorderly conduct. The prosecution subsequently entered a nolle
prosequi to those charges and on the same day
obtained indictments charging the defendants with one count of aggravated riot, a
felony, and two counts of misdemeanor assault,
all of which were based on the same conduct as the complaints. The court found
that the time expended under the misdemeanor
complaints, when added to the time expended under the subsequent indictments,
exceeded the 270 days required for bringing the
defendants to trial under a charge of felony. The court stated that, after the
entry of the nolle prosequi, the misdemeanor
charges were no longer pending and the running of the statute was therefore
tolled.

*34667 Affirming a judgment dismissing an indictment charging the defendant


with weapons violations, the court, in State v
Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759, motion overr,
held that the defendant was entitled to
dismissal of the indictment where the time the defendant was incarcerated under
that indictment and a prior indictment charging him
with the same crime exceeded the statutory speedy trial period. The initial
indictment was dismissed for want of prosecution after
the denial of the prosecution's request for a continuance. The court held that
the proper method of computing time under the
speedy trial statute was to include the time expended pending trial under the
original indictment with the time expended under a
subsequent indictment where a nolle prosequi was entered on the original
indictment or dismissed through the fault of the
prosecution. In addition, the court stated that if the defendant was released
without bail on dismissal of the original
indictment, he would not be entitled to have the time between the dismissal and
the reindictment included in computing the speedy
trial period since no charges would be pending during such period. However, the
court continued, if the defendant was held in jail
or released on bail between the dismissal and the reindictment, such time spent in
jail or on bail would be included in the
computation of time under the speedy trial rule.

See also Durrough v State (1981, Tex Crim) 620 SW2d 134 (not followed on other
grounds Collins v State (Tex App Fort Worth) 672
SW2d 588) and later app (Tex App Corpus Christi) 672 SW2d 860, where the court
held that although the defendant was entitled under
the speedy trial statute to add the time expended while the prior charge was
pending to the time expended while the subsequent
charge was pending, the speedy trial statute was not violated where the
defendant's waiver of his speedy trial rights under the
prior indictment applied also to the subsequent indictment. The defendant was
indicted for murder, but the state obtained a new
indictment on the identical charge and the previous indictment was dismissed 5
days later. The defendant previously waived his
right to a speedy trial under the prior indictment when he requested two
continuances. The court concluded that the statute did
not permit the defendant to add the time expired during continuances granted at
his request on the prior indictment to the
subsequent one, at least not where the two indictments were identical. However,
the conviction was reversed on the ground that a
prospective juror had been improperly excluded.

And the rule that where a prior charge is dismissed on motion of the state, the
time between the dismissal and the bringing of a
subsequent charge is not to be included in computing the defendant's speedy trial
rights was also recognized in Vanderbilt v State
(1981, Tex Crim) 629 SW2d 709, cert den 456 US 910, 72 L Ed 2d 169, 102 S Ct 1760;
Johnson v State (1982, Tex App Dallas) 632 SW2d
658; and Cockrell v State (1982, Tex App Fort Worth) 632 SW2d 664.

Vacating a judgment convicting the defendant of criminally negligent homicide,


the court, in Cole v State (1983, Tex Crim) 650
SW2d 818, held that the period of time expended under the prior complaint and
information was to be added to the time expended
under the subsequent charges where the prior charges were dismissed on the state's
motion. Approximately 1 year after the filing
of the initial charges and 9 months after the enactment of the speedy trial
statute, the prosecution obtained dismissal of the
initial charges and on the same day filed a new instrument charging the defendant
with the same offense arising from the same
incident. The defendant's motion to dismiss for failure to comply with the Speedy
Trial Act was overruled after a hearing. Noting
that the speedy trial statute provides that the time between the dismissal of the
original charge and the bringing of the new
charge based on the same offense or arising out of the same transaction was not to
be included in the speedy trial computation, the
court concluded that it was reasonable to infer that the time elapsed under the
first charging instrument was to be included in the
computation along with the time elapsed under the subsequent instrument. The
court stated that even before the date of his motion
to dismiss, the defendant was entitled to dismissal for failure of the state to
bring him to trial within the time limits of the
Speedy Trial Act.

*34668 See Washington v State (1984, Tex App Dallas) 677 SW2d 142, s 11.

Delay of five months between second indictment and trial did not weigh against
the State in speedy trial analysis where defendant
filed motion for speedy trial 13 months after his first indictment, but he
neglected to file another motion after his second
indictment and instead filed motion to dismiss. Vernon's Ann. Texas Const. Art.
1, s 10. Griffith v. State, 976 S.W.2d 686 (Tex.
App. Tyler 1997), reh'g overruled, (Feb. 4, 1998) and petition for discretionary
review refused, (June 17, 1998).

Affirming a burglary conviction, the court, in State v Wieman (1978) 19 Wash App
641, 577 P2d 154, held that the period between
the dismissal of the original charge and the refiling of the same charge was
excluded by the speedy trial rule in computing the
period elapsed for speedy trial purposes. The prior complaint filed in district
court was dismissed on the state's motion and an
information was subsequently filed in the superior court. The court stated that
there was no violation of the 90-day speedy trial
rule unless the time between the dismissal and the refiling were included in the
computation of the statutory period.

[c] Held to run anew

In the following cases wherein the termination of the prior accusatory


instrument was attributable to the prosecution, the courts
held that the time expended under the prior accusatory instrument was not
applicable to the speedy trial period under the
subsequent accusatory instrument and that the speedy trial period began to run
anew under the subsequent accusatory instrument.
[FN10]

Okla--Bowie v State (1995, Okla Crim) 906 P2d 759 (court pointed out that right
to speedy trial is not primarily intended to
prevent prejudice to defense caused by passage of time; rather, right is designed
to minimize possibility of lengthy incarceration
prior to trial).

Trial court properly denied defendant's motion to dismiss indictment following


second arrest, after original indictment was
dismissed on speedy trial grounds, since thirty-day time limits of local speedy
trial rule ran anew from date of subsequent arrest,
rather than dates of original arrest or dismissal. United States v Petak (1985,
SD Tex) 623 F Supp 74, later proceeding (CA5 Tex)
818 F2d 322, cert den (US) 98 L Ed 2d 859, 108 S Ct 772.

Period between date on which defendant first appeared in connection with


indictment and entered guilty plea, and date on which
charges were dismissed, was excludable in determining whether defendant's rights
under Speedy Trial Act (STA) were violated after
he was reindicted; defendant had not entered not guilty plea, as required under
STA to begin operation of speedy trial clock. 18
U.S.C.A. s 3161(c)(1). U.S. v. O'Dell, 154 F.3d 358, 1998 FED App. 267P (6th Cir.
1998).
Prior dismissal of complaint without prejudice had no impact on subsequent
filing of indictment for Speedy Trial Act purposes;
thus, statutory time period began to run anew from issuance of subsequent
indictment. United States v Nesbitt (1988, CA7 Ind) 852
F2d 1502, cert den (US) 102 L Ed 2d 798, 109 S Ct 808.

Government's filing of third superseding indictment effectively dismissed the


prior indictments, and thus, Speedy Trial Act clock
was restarted as to all defendants joined in drug and conspiracy prosecution on
date when last indicted codefendant made her
initial appearance. 18 U.S.C.A. s 3161. U.S. v. Goodman, 36 F. Supp. 2d 947 (M.D.
Ga. 1999).

See also State v Pogue (1976) 113 Ariz 478, 557 P2d 163, in which the court held
that the speedy trial period began to run from
the filing of the subsequent complaint where the initial charges against the
defendant were dismissed and the defendant was
released from custody. Although the defendant was charged with burglary, he was
subsequently told that no preliminary hearing
would be held and that the charges were dismissed. However, a complaint was
subsequently filed charging the same crime. Stating
that the original attempt to charge the defendant was comparable to a complaint
being filed and then dismissed, the court concluded
that the speedy trial period ran from the filing of the subsequent complaint where
there was no evidence that the prosecutor was
attempting to evade the speedy trial limits by refusing to authorize a complaint
under the earlier charges.

*34669 In State v Million (1978) 120 Ariz 10, 583 P2d 897, the court,
affirming a conviction for transporting marijuana, held
that the speedy trial period commenced to run from the date of the second
indictment. The original indictment was dismissed
without prejudice on motion of the prosecution over the defendant's objection
after the defendant's motion to suppress the use of
evidence was granted and the state filed a notice of appeal from that order. The
defendant contended that he was denied his right
to a speedy trial by the delay of 435 days from the dismissal without prejudice of
the original indictment to the filing of the new
indictment. Rejecting the defendant's argument that the prosecution obtained
dismissal of the initial indictment to avoid the
provisions of the speedy trial rule, the court concluded that the state obtained
the dismissal based on the legitimate belief that
going to trial was unacceptable due to the probability that there would be
insufficient evidence to convict in view of the
suppression of the evidence.

Affirming a conviction for conspiracy to commit prostitution and related


charges, the court, in People v Wilkinson (1976) 37 Colo
App 531, 555 P2d 1167 (disagreed with on other grounds People v Watson (Colo App)
666 P2d 1114), held that the defendant was not
denied his statutory right to a speedy trial where the trial commenced within 6
months of the date of his entry of a plea on the
second indictment. The defendant, originally indicted for two counts of
eavesdropping and one count of criminal libel, entered a
plea of not guilty to all counts. Four days before trial on that indictment, a
new, eight-count indictment charging the defendant
with crimes arising out of the same criminal transactions was filed. Two days
later the original indictment was dismissed, and the
defendant subsequently entered a plea of not guilty to each of the eight counts of
the second indictment. While agreeing that the
prosecutor could not indiscriminately dismiss and refile charges to avoid the
mandate of the speedy trial statutes, the court
stated that, in order to be entitled to a dismissal on these grounds, the
defendant had to establish affirmatively the existence of
such a design on the part of the prosecution. The court added that this burden
was not satisfied by proof that the prosecution
sought and obtained a subsequent indictment for different offenses arising from
the same transaction. The court therefore
concluded that the 6-month limitation ran from the date the defendant entered his
plea to the second indictment.

Affirming a conviction for vehicular homicide, the court, in People v Dunhill


(1977) 40 Colo App 137, 570 P2d 1097 (disagreed
with on other grounds People v Watson (Colo App) 666 P2d 1114), held that the
defendant was not denied his right to a speedy trial
where his trial took place within 6 months from the time of his arraignment under
the last information and where there was no
showing that the prosecution was dismissing and refiling informations to avoid the
6-month speedy trial rule. The initial
information was dismissed on the district attorney's motion on the ground of
improper venue. The second information was dismissed
for failure to prove venue and the last information was thereafter filed. The
court held that the speedy trial period commenced on
the defendant's arraignment under the last information. The court further stated
that absent a showing that the prosecution was
attempting to evade the speedy trial rule, there was no violation of the
defendant's rights.

Continuances obtained in connection with trial of original charges, but before


new charges arising out of same facts are filed,
are attributable to those later-filed charges for purposes of speedy-trial limits,
even if state had knowledge of facts at time
original prosecution was commenced. S.H.A. 725 ILCS 5/103-5. People v. Gooden,
296 Ill. App. 3d 205, 230 Ill. Dec. 584, 694
N.E.2d 215 (5th Dist. 1998) (abrogated by, People v. Reedy, 1999 WL 23253 (Ill.
1999)).

In State v Bige (1924) 198 Iowa 573, 198 NW 510, it was held that accused was
not denied a speedy trial because the indictment on
which he was tried superseded a preceding one which had passed a term without
trial, there being no claim that the trial was not
held at the next term following that in which the second indictment was returned.

In State v Rowland (1952) 172 Kan 224, 239 P2d 949, 30 ALR2d 455, decided under
a prior speedy trial statute, the court held that
the time expended under a prior information or indictment dismissed by the
prosecution with the consent of the court was not to be
added for speedy trial purposes to the time expended under a subsequent indictment
or information charging the same crimes. The
original information charging the defendant with forgery and related crimes was
filed in April 1949 and was dismissed during the
September term. The defendant was rearrested and a new complaint was filed for
the identical offenses during the May 1950 term.
Rejecting the defendant's argument that he was denied his right to a speedy trial
by the time expended under the two informations,
the court concluded that the nolle prosequi or the dismissal of an indictment or
information with the consent of the court was not
a bar to reindictment or reinformation of the defendant on the identical charges
and that the time prescribed for trial would be
counted from the institution of the subsequent indictment or information.

*34670 In absence of showing of subterfuge by state to avoid speedy trial


statute, time when defendant was being held on prior
charges, which were dismissed before arraignment and thus before 90-day speedy
trial clock had begun to run, was not tacked onto
time allotted to charges on which defendant was tried. State v Goss (1989) 245
Kan 189, 777 P2d 781.

When criminal charges are nolle prossed, ordinarily, time period for commencing
trial begins to run upon refiling, except where
it is shown that prosecutor's purpose was to circumvent law. Thus, in prosecution
for violations of controlled substance laws,
trial court properly denied defendant's motion to dismiss for violation of speedy
trial rule, where court, after listening to
arguments from defendant and prosecutor regarding filing of nolle prossed charges,
determined that state was not deliberately
trying to circumvent law. Campbell v State (1991) 86 Md App 158, 586 A2d 32, cert
gr 323 Md 115, 591 A2d 506.

When charges are nol prossed and new charges are filed, a new and independent
180-day count begins under speedy trial statute and
rule. Code 1957, Art. 27, s 591; Md.Rule 4-271. Baker v. State, 130 Md. App.
281, 745 A.2d 1142 (2000).

The decision and order of the Supreme Court, Appellate Division, directing a new
trial became final after the Court of Appeals
dismissed the People's appeal and denied the People's motion to reargue the
denial; therefore, state's failure to reannounce their
readiness for trial within the statutorily-prescribed period, that commenced when
the decision and order became final, mandated
dismissal of defendant's indictment. McKinney's CPL ss 30.30, subd. 1(a, b),
30.30, subd. 5(a). People v. Blancero, 736 N.Y.S.2d
50 (App. Div. 2d Dep't 2001).

Reversing a decision overturning a conviction on speedy trial grounds, the


court, in State v Freeman (1983) 308 NC 502, 302 SE2d
779, held that the statutory speedy trial period began to run anew under a
subsequent indictment where the original indictment was
returned in a different county and prosecutorial district. The defendant was
originally indicted on three counts of obtaining
money by false pretenses. He was subsequently indicted in another county on three
separate charges of conspiracy to obtain money
by false pretenses and the initial indictment was later dismissed by the
prosecution. His convictions were subsequently reversed
on the ground that he had not been brought to trial within 120 days of the
original indictment. Rejecting the claim of a speedy
trial violation, the court stated that criminal actions cannot be considered as
one common scheme or plan for speedy trial purposes
where such actions occur in different prosecutorial districts. The court
concluded that to hold otherwise would allow the
dismissal of a case in one district as a result of the actions by the prosecutor
in another district without the knowledge or
consent of the district attorney in the affected district.
Where superseding indictments were appropriate and were obtained in good faith,
time period set by speedy trial rule began to run
on date they were returned. State v Parker (1986) 316 NC 295, 341 SE2d 555.

Reversing the dismissal of indictments charging the defendant with breaking or


entering and first-degree rape, the court, in
State v Simpson (1983) 60 NC App 436, 299 SE2d 257, petition den 308 NC 193, 302
SE2d 247, held that the speedy trial period
commenced to run from the filing of the indictment that replaced the original
charges voluntarily dismissed by the state. The
original charges were set for a probable cause hearing, but no such hearing was
held and the state took a voluntary dismissal.
Thereafter, the defendant was indicted for the same offenses. Noting that the
dismissal of the original charges was not based on
G.S.15A-703 or a finding of no probable cause, the court interpreted the speedy
trial statute to mean that where dismissals are
based on other grounds, the speedy trial period runs from the subsequent
indictment rather than the original charge. Therefore,
the court concluded that the voluntary dismissal in the instant case and the
subsequent indictment of the defendant started the
speedy trial period running from the time of that indictment.

Although defendant was in jail during most of the time between nolle prosequi
and his reindictment for aggravated murder, his
imprisonment would not be counted for purposes of computing the speedy trial time
period; defendant's imprisonment resulted from
his conviction on 11 counts of forgery in a wholly unrelated matter, and nolle
prosequi was entered by the state in part based on
defense arguments that there was insufficient proof and that further investigation
of other suspects was necessary. R.C. ss
2945.71 et seq. State v. Myers, 97 Ohio St. 3d 335, 2002 -Ohio- 6658, 780 N.E.2d
186 (2002).

*34671 Date of reissuance of defendant's misdemeanor charge of driving under


the influence of intoxicants (DUII), following
dismissal, was starting point, for purposes of speedy trial statute, for
calculating period of time it took state to bring
defendant to trial. ORS 131.135, 813.010. State v. Hampton, 152 Or. App. 742,
954 P.2d 1267 (1998).

Where commonwealth's motion to dismiss was based on lack of evidence and not an
bad faith, time for computing speedy trial period
was properly calculated from date of second complaint. Commonwealth v Whiting
(1985, Pa) 500 A2d 806.

See Armstead v State (1984, Tex App El Paso) 677 SW2d 266, review ref, en banc
(Tex Crim) 692 SW2d 99, s 24[a].

As calculated from preliminary hearing date for the original charges, speedy
trial statute had not expired when grand jury
returned new indictments six weeks later, charging a violation of a different
statute based on the same alleged events, and thus,
new indictments supplanted the finding of probable cause made by the district
court, defendant's continued incarceration was based
on the new indictments, and speedy trial statute began to run anew as of date of
new indictments' issuance, even though no
indictment was ever issued for the offenses for which defendant was arrested and
no nolle prosequi of the charges on which he was
arrested by warrant was ever effected. Code 1950, s 19.2-243. Ashby v. Com., 33
Va. App. 540, 535 S.E.2d 182 (2000).

And in State v Hansen (1894) 10 Wash 235, 38 P 1023, where defendant was brought
to trial upon an information charging him with
the crime of burglary committed in the nighttime, which information was quashed
upon motion of the prosecuting attorney, with leave
to file a new information, whereupon the prosecutor filed a new information
charging burglary generally, which defendant moved to
quash on the ground that he had not been brought to trial within sixty days after
the filing of an information against him, the
court held that if the second information could be filed at all, it must be held
that the accused had no right to urge against a
trial upon it that a time greater than sixty days had elapsed since the filing of
some former information, which was no longer in
the case.

s 6. Where subsequent accusatory instrument was based on new evidence or facts

In the following cases wherein the termination of the prior accusatory


instrument was attributable to the prosecution and the
subsequent accusatory instrument was based on new evidence or information that
became known to the prosecution following the
bringing of the prior accusatory instrument, the courts held that the applicable
speedy trial period began to run anew under the
subsequent accusatory instrument.

Seventy-day period for bringing criminal defendants to trial under Speedy Trial
Act did not begin to run on charges in second
indictment which were not included in first indictment against defendants, even
though charges arose from same criminal episode as
original indictment. 18 U.S.C.A. s 3161(d). U.S. v. Howard, 63 F. Supp. 2d 728
(E.D. Va. 1999).

In prosecution for embezzlement and making false entries into a bank's books,
70-day period within which trial was required to
commence under speedy trial statute began to run anew from issuing of second
indictment against defendant where original complaint
was dismissed without prejudice on motion of government because government needed
additional time to investigate alleged criminal
activity and acquire further evidence. United States v May (1985, CA6 Mich) 771
F2d 980.

In prosecution for conspiracy to defraud United States, superseding indictment


with two new counts filed more than 1 year after
original indictment did not violate speedy trial rights where, given complexities
of prosecution, length of delay was not onerous,
and prejudice to defendant was minimal, especially since preparing to defend count
one encompassed preparing to defend original
charge. United States v Pelini (1995, ND Ill) 896 F Supp 797.

Speedy Trial Act does not guarantee that arrested individual indicted within 30
days of his arrest must, in that 30-day period,
be indicted for every crime known to government, failing which he may never be
charged; thus, defendant's motion to dismiss
superseding indictment, which was filed more than 30 days from date on which he
was arrested but within five-year statute of
limitations applicable to non-capital crimes, would be denied. United States v
Wilson (1991, MD Ga) 762 F Supp 1501.

*34672 Affirming a conviction for "Driving After Judgment Prohibited," the


court, in People v Scott (1980) 200 Colo 365, 615
P2d 680, held that the defendant was not denied his statutory right to a speedy
trial where the 6-month speedy trial period began
to run from the entry of the defendant's plea of not guilty to the second
complaint. The first complaint charged the defendant
with the misdemeanor of driving while his license was revoked. The prosecution
subsequently obtained dismissal of that charge
after it was learned that the defendant had previously been adjudicated a habitual
traffic offender. The second complaint charged
the defendant with the felony of "Driving After Judgment Prohibited." Noting that
by charging the defendant with the felony
offense, the prosecution charged a new, different, and additional offense to the
original misdemeanor charge, and that the record
did not indicate that the district attorney indiscriminately dismissed and refiled
the charges in order to avoid the mandate of the
speedy trial rule, the court concluded that the dismissal and the filing of the
new complaint caused the 6-month speedy trial
period to begin to run from the entry of the not-guilty plea to the second
complaint. Since the defendant was brought to trial
within 6 months of his plea of not guilty to the second complaint, the court
concluded that he had not been denied his right to a
speedy trial.

The applicable time period under the speedy trial rule was held, in State ex
rel. Branch v Wade (1978, Fla App -1) 357 So 2d 473,
to run from the time of an indictment for first-degree murder where the victim
died after the defendant was arrested pursuant to an
information charging him with attempted first-degree murder. Following the return
of the subsequent indictment, the state entered
a nolle prosequi on the attempted murder information. Denying the defendant's
petition for a writ of prohibition to prevent his
trial under a first-degree murder indictment, the court concluded that the speedy
trial period could not have run on the murder
charge prior to the indictment since, although both crimes arose from the same
criminal conduct, the murder charge was not
available until the victim died.

Trial court properly exercised its discretion in dismissing, under statute


allowing subsequent new prosecution in cases of
serious crime, information charging defendant with murder and sexual assault,
where prosecution sought dismissal of information
four days before trial was scheduled to begin on basis of newly discovered
evidence that appeared to be exculpatory,
notwithstanding that defendant was subsequently indicted, tried and convicted on
same charges, since indictment was based on prior
evidence and final results of investigation of apparently exculpatory evidence
that was under analysis inculpatory. State v Knox
(1990, Iowa) 464 NW2d 445.
However, in State v Cuezze (1979) 225 Kan 274, 589 P2d 626, mod on other grounds
225 Kan 468, 595 P2d 723, the court, affirming
so much of a judgment as dismissed an information against two of three defendants,
held that the two defendants were denied their
statutory right to a speedy trial where they remained continuously charged under
two substantially identical informations for a
period of time far in excess of the 180-day statutory time limit. The two
defendants were charged in the original information and
arraigned thereunder, while a third defendant was named as a coconspirator but was
not charged. After additional evidence was
obtained, a new information naming all three defendants was filed and the original
information was subsequently dismissed. Noting
that the second information was brought while the first was still pending, the
court concluded that the state offered no valid
justification for the delays and impliedly held that the entire period of time
from the defendants' arraignment under the first
information was includable, except delays caused by the defendants, in
establishing their speedy trial rights. The court stated
that absent a showing of necessity, the prosecution could not dismiss a criminal
action and refile the identical charges against
the same defendants and avoid the time limitations of the speedy trial statute.

The 90-day period for bringing a defendant to trial after the granting of a
motion for a new trial was held, in State v Haislip
(1983) 234 Kan 329, 673 P2d 1094, to run from the time of the defendant's
arraignment under a subsequent information where the
state made an adequate showing of necessity for the dismissal of the original
information and the refiling of the same charges.
The defendant was originally charged and subsequently convicted after trial for
murder in the first degree and aggravated battery
on a law enforcement officer. Following the granting of a new trial, the
prosecution became convinced of the involvement of
another suspect in the murder and charged that suspect with the identical
offenses. The prosecution's motion to consolidate the
two cases having been denied, the charges against the defendant and the other
suspect were dismissed without prejudice and a joint
information instantaneously filed against both defendants. Noting that there was
no evidence that the prosecution was attempting
to manipulate the speedy trial requirement, the court concluded that the dismissal
of the original information was based on
necessity where the request to consolidate the cases was denied and a request by
the prosecution for a continuance instead of
dismissal would have been of no value since a continuance would not have
accomplished the desired result of a consolidated trial.
Computing the time from the arraignment under the subsequent information, the
court stated that the defendant was tried within the
90-day period as required by statute.

*34673 State did not violate rights of defendant under speedy trial statute,
though after assistant county attorney had
charged defendant with second-degree murder the State took over the case and
reindicted defendant for felony child abuse murder, as
State did not use second indictment to avoid time limits under speedy trial
statute by refiling same charges from earlier
indictment, but instead charged more serious crimes in the second complaint and
indictment. K.S.A. 21-3401(b), 21-3402(b),
21-3436(a)(7), 22-3402(2). State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998).
Delay in bringing defendant to trial due to fact that first indictment was
dismissed without prejudice because it did not include
his aliases, he was presented to next grand jury which was a routine procedure,
and his case was then set for trial was in no way a
deliberate attempt to harm the defense and, therefore, weighed less heavily
against the State in determining whether defendant's
Sixth Amendment speedy trial rights were violated. U.S.C.A. Const Amend 6.
Jamison v. State, 741 So. 2d 359 (Miss. Ct. App. 1999).

Denying a petition for a writ prohibiting further proceedings in criminal


actions against the petitioners, the court, in State ex
rel. Delgado v Stanley (1972) 83 NM 626, 495 P2d 1073, held that the petitioner's
right to a speedy trial was not violated where
the 6-month period provided by the speedy trial rule had not expired from the date
the subsequent indictment was filed. The
petitioners were originally charged in an information with possession of heroin,
but the prosecution filed a nolle prosequi to that
information. The petitioners were subsequently indicted on the same charge
allegedly committed on the same day as that in the
original information. Noting that the indictments were obtained as a result of
newly obtained evidence that presumably came to
light after the filing of the nolle prosequi, the court concluded that the speedy
trial period ran from the filing of the
subsequent indictment where the defense did not assert that this procedure was
utilized by the prosecution as a means of evading
the operation of the speedy trial rule. The court added that in a case where the
defense asserted that the prosecution attempted
to evade the speedy trial rule and the prosecution failed to prove that it acted
in good faith in dismissing the original charges,
the court would be inclined to hold that the operative date that commenced the
running of the period set forth in the rule was that
on which the original indictment or information was filed.

Reversing the dismissal of indictments for speedy trial violations, the court,
in State v Freeman (1983) 308 NC 502, 302 SE2d
779, held that the filing of a subsequent indictment controlled the computation of
the speedy trial period where the state had a
valid reason for obtaining that indictment to replace a previously filed
indictment. The defendant was originally indicted for
conspiracy to obtain money by false pretense. He was subsequently indicted on
three counts of aiding and abetting in obtaining
property by false pretense, as well as one count of conspiracy to commit false
pretense. While the initial conspiracy indictments
charged commission of those crimes on three specific dates, the subsequent
indictments charged commission of the conspiracy during
a period of approximately 3 months. Noting that the time of commission of the
offenses could be vital to the state's case, the
court concluded that the time period ran from the subsequent conspiracy
indictments where the superseding indictment on the
conspiracy charge was based on additional information and reflected the state's
attempt to protect its interest in proving the
defendant's guilt. Likewise, the court concluded that the speedy trial period on
the aiding and abetting indictment ran from the
subsequent indictments where those indictments represented the result of
additional information leading to new and more specific
charges.

As calculated from preliminary hearing date for the original charges, speedy
trial statute had not expired when grand jury
returned new indictments six weeks later, charging a violation of a different
statute based on the same alleged events, and thus,
new indictments supplanted the finding of probable cause made by the district
court, defendant's continued incarceration was based
on the new indictments, and speedy trial statute began to run anew as of date of
new indictments' issuance, even though no
indictment was ever issued for the offenses for which defendant was arrested and
no nolle prosequi of the charges on which he was
arrested by warrant was ever effected. Code 1950, s 19.2-243. Ashby v. Com., 33
Va. App. 540, 535 S.E.2d 182 (2000).

*34674 In State v Anderson (1980) 94 Wash 2d 176, 616 P2d 612, later app 96
Wash 2d 739, 638 P2d 1205, cert den 459 US 842, 74
L Ed 2d 85, 103 S Ct 93, where the defendant was originally charged with second-
degree assault but was later charged with
first-degree murder and first-degree manslaughter after the death of the victim,
the court held that the speedy trial time
commenced with his arraignment under the homicide charges since the speedy trial
period could not go into effect until all of the
elements of the crime had been completed. The original charges arose out of
injuries inflicted on the defendant's stepdaughter.
While those charges were pending, the victim died and the homicide charges were
filed against the defendant. The assault charge
was apparently abandoned by the prosecution. Rejecting the defendant's claim that
the speedy trial time commenced to run on the
date of his arraignment on the assault charge since the homicide charge was a
crime based on the same conduct as the assault
charge, the court concluded that the final and crucial element of the crime of
first-degree murder, the death of the victim, had to
occur before the speedy trial time began to run.

s 7. Where prior accusatory instrument was alleged to be defective or otherwise


invalid

[a] Held to continue to run

The prior accusatory instruments in the following cases having been terminated
by the prosecution due to an alleged defect or
invalidity therein and having been replaced by new accusatory instruments, the
courts held that the statutory speedy trial period
continued to run unabated despite the termination.

Reversing a conviction for driving a vehicle while his ability to operate it was
impaired by the consumption of alcohol, the
court, in Amon v People (1979) 198 Colo 172, 597 P2d 569, held that the defendant
was denied his statutory right to a speedy trial
where he was not brought to trial within 6 months of his original not-guilty plea
under the original complaint. The original
complaint charged the defendant with driving a motor vehicle while under the
influence of "alcohol or narcotics." The prosecution
subsequently filed an "Amended Complaint," charging the defendant with driving a
motor vehicle while under the influence of
"alcohol." The subsequent complaint was treated as an entirely new complaint,
complete with a new affidavit, and the defendant was
thereafter arraigned under that complaint. The trial took place approximately 9
months after the defendant's not-guilty plea to
the original complaint, thereby violating the 6-month speedy trial period of the
applicable statute. Stating that the crucial
issue was whether the amended complaint charged any new, different, or additional
offense not alleged in the original complaint,
thereby requiring the entry of another plea by the defendant, the court concluded
that no such new, different, or additional
offense was alleged in the subsequent complaint and that the speedy trial period
therefore had to be computed from the date of the
defendant's original not-guilty plea.

The statute involved in Durham v State (1851) 9 Ga 306, provided that one
indicted for a noncapital offense might demand that he
be tried at the term of court at which the indictment was found or at the next
succeeding term and that if he was not tried at the
term when demand was made or at the next succeeding term, he should, provided that
at both terms there were juries impaneled which
were qualified to try him, be absolutely discharged. In this case defendant was
indicted at a May term of court and when his
indictment was called at the succeeding November term, answered he was ready for
trial, but the state moved for a nolle prosequi on
the ground that the indictment was fatally defective. Defendant objected and
applied for discharge under the statute, but the
trial court refused to discharge the prisoner and allowed the nol pros. A new
indictment was then preferred, and when it was
called defendant answered ready, but the state applied for a continuance.
Defendant objected and made a second application for
discharge, which was refused. The reviewing court construed the statute to mean
that while the state was not prevented from
entering a nolle prosequi, assuming the case had not been submitted to a jury,
this right could not abrogate the absolute right to
a discharge given the accused by the statute, provided the statutory conditions as
to the existence of a jury were met. With
respect to the facts of the present case, it was held that while defendant's first
application for discharge was premature, since
it followed immediately upon the discontinuance of the first indictment, the
second application should have been granted, since the
state had asked for a continuance when the second indictment was called, and it
was presumable that this indicated that the
solicitor general believed he would have no other opportunity to try the case at
that term of court, which, in view of the time of
defendant's original demand for trial, was the last permissible term for trial of
the indictment.

*34675 In People v Stuckey (1967) 83 Ill App 2d 137, 227 NE2d 135, the court
stated that the speedy trial period ran from the
date of the defendant's commitment and was not affected by a reindictment to
correct a defect in the original indictment. Although
the original indictment correctly charged the defendant with the murder of his
wife, the indictment incorrectly noted the victim's
first name. The prosecutor thereafter obtained a correct indictment and
subsequently nolle prossed the original indictment. The
court stated that the sufficiency of the indictment was immaterial to the
enforcement of the Act unless there was a showing that
the state had nolle prossed the indictment and reindicted solely for the purpose
of circumventing the statute. However, the court
concluded that the defendant's speedy trial rights were not violated where the
continuances he obtained under the first indictment
applied to the second indictment and therefore brought the trial period within the
requirements of the statute.

In State ex rel. Wernke v Superior Court of Hendricks County (1976) 264 Ind 646,
348 NE2d 644, the court stated that it would
look to the date of the filing of the first information in calculating the 1-year
period provided by the speedy trial statute
where, although the first information charged the petitioner with delivery of
marijuana and the subsequent information charged him
with delivery of hashish, the statutory definition of "marijuana" included
"hashish." The original information was dismissed on
motion of the prosecution on the ground that it erroneously charged delivery of
marijuana when the actual substance allegedly
delivered was hashish. However, the court denied the petition for a writ of
mandate and prohibition to compel the petitioner's
discharge, basing its denial on the conclusion that the petitioner waived his
right to discharge under the speedy trial statute by
failing to object at the earliest opportunity to the setting of his trial date
beyond the statutory 1-year time period.

Defendant was not denied either statutory or constitutional right to speedy


trial by virtue of 456-day delay between time
defendant was first arrested and date of trial, where prosecution's delay in
reindicting defendant was caused by mere negligence in
preparing original indictment and was not to be weighed heavily against
prosecution, where trial court quashed subsequent
indictment because grand jury had not been reconvened by order of court, and final
period of delay was caused by court docket
congestion; defendant furthermore never really asserted right to speedy trial.
Adams v State (1991, Miss) 583 So 2d 165.

Defendant's statutory right to a speedy trial was violated in prosecution for


endangering the welfare of a child, where Assistant
District Attorney did not recognize his mistake in serving improper complaint on
defendant, and did not serve corrected copy of
superseding complaint upon defense counsel or file it with the court, until 92
days after commencement of criminal matter.
McKinney's CPL s 30.30; McKinney's Penal Law s 260.10. People v. Mascali, 189
Misc. 2d 549, 736 N.Y.S.2d 839 (Crim. Ct. 2001).

Indictment was subject to dismissal for People's failure to satisfy requirements


of statute, which allowed People six months from
filing of felony complaint in which to be ready for trial, where complaint was
filed December 8, 1990, at which time, pursuant to
statute, People had 182 days in which to be ready for trial, where defendant was
indicted and People announced readiness for trial
on June 6, 1991, 180 days after prosecution had commenced, and where, because of
defect in evidence presented to grand jury,
indictment was dismissed on January 6, 1992, and new indictment filed on January
7, 1992, but no new announcement of readiness for
trial was made until January 10, 1992, when defendant was arraigned on second
indictment, at which time 183 days of time had
elapsed. Although People's announcement of readiness on first indictment
satisfied statute with respect to subsequent indictment,
they were, nevertheless, required to declare their readiness for trial after
filing second indictment. People v Respress (1993,
App Div, 4th Dept) 600 NYS2d 535 (defendant's constitutional right to speedy trial
was also violated).

Reversing a conviction for sex offenses, the court, in State v Kent (1971) 5 Or
App 297, 484 P2d 1109, held that the statutory
speedy trial period did not begin to run anew from the time of reindictment where
the reindictment was unnecessary. The original
indictment charged the defendant with three counts of sex-related crimes. The
defendant filed a written notice of demand for an
early trial, which notice required by statute that he be brought to trial within
90 days, excluding continuances granted for good
cause shown. Within the 90-day period, the prosecution obtained a second
indictment that set out only two counts. The reason for
reindictment was that the statute on which the third charge was based had been
declared unconstitutional. Rejecting the
prosecution's claim that the reindictment started the speedy trial period running
anew, the court stated that the reindictment was
unnecessary since a motion to dismiss the third count would have accomplished the
same result.
*34676 Reversing a conviction for receiving stolen property and resisting
arrest, the court, in Commonwealth v Ardolino (1982)
304 Pa Super 268, 450 A2d 674, held that the speedy trial period ran from the
filing of the initial complaint and not from the
filing of the final complaint where the first two complaints were improperly
dismissed. The original complaint charging the
defendant with receiving stolen property and conspiracy was nolle prossed on the
ground that the complaint contained a substantial
defect that could not be cured by an amendment. A second complaint alleging only
the charge of receiving stolen property was
withdrawn and a third complaint was eventually filed against the defendant
charging him with receiving stolen property and
resisting arrest, the latter charge arising out of an incident when the police
went to the defendant's home to execute the arrest
warrant issued after the second complaint. The court stated that there was no
reason why the first complaint could not have been
amended and that it was not even an informal defect to have left the resisting
arrest charge off the second complaint, since that
charge did not arise "from the same incident" as the receiving stolen property
charge.

In murder prosecution in which defendant was originally indicted by instrument


alleging that he had shot victim, district
attorney filed successful motion for a continuance shortly before original trial
date, and defendant was reindicted by instrument
alleging (correctly) that he had stabbed victim, with state announcing its
readiness for trial on reindictment on same day,
defendant's motion for dismissal on grounds that state had not complied with 120-
day speedy trial period should have been granted
where readiness on reindictment was announced 168 days after commencement of
action, and, though both indictments concerned same
offense and continuance carried forward from first to second indictment,
continuance had not been granted for reasons that qualify,
under statute, for exclusion from speedy trial period. Santibanez v State (1986,
Tex Crim) 717 SW2d 326.

In prosecution for aggravated robbery in which on state's motion, original


indictment was dismissed for alleging that actions of
defendant were "with the effective consent" of victim instead of "without the
effective consent", time period for speedy trial
purposes on indictment filed two days later commenced on date of dismissal.
Garcia v State (1984, Tex App Corpus Christi) 673 SW2d
696.

[b] Held to run anew

In the following cases in which the prior accusatory instruments were terminated
by the prosecution due to their being defective
or invalid and were replaced with subsequent accusatory instruments, the courts
held that the applicable speedy trial periods
commenced to run anew under the subsequent accusatory instruments.

Affirming a conviction for second-degree murder, the court, in State v Johnson


(1976) 113 Ariz 506, 557 P2d 1063, held that the
speedy trial period was computed from the defendant's arraignment under a
subsequent indictment where the original complaint was
dismissed on the county attorney's motion "for the reason that complaint was
failing for lack of jurisdiction." Two days before
trial under the original complaint, the defense attorney noted a possible
jurisdictional defect in the complaint. The same day as
the dismissal of the complaint, the county attorney secured a grand jury
indictment against the defendant charging him with the
same offense. Noting that it had previously held that a second indictment on the
same charge gave rise to a new time period where
the defendants' motion for a new finding of probable cause was granted, the court
concluded that the same reasoning applied in the
instant case.

Statutory time for speedy trial began to run anew from time of arraignment on
second complaint, more than two years after
dismissal of first complaint containing identical charges, where first complaint
was dismissed as matter of necessity because,
under new court of appeals' decision, original unverified complaint was invalid
and conferred no jurisdiction on court, and where
it appeared that state had not attempted to manipulate speedy trial requirements.
State v Jamison (1991) 248 Kan 302, 806 P2d 972.

Reversing a judgment dismissing charges of distribution of obscene material


because the accused was not afforded a speedy trial,
the court in State v Glenn (1984) 299 Md 464, 474 A2d 509, held that the date of
the second indictment must be looked to in
calculating the 180-day period provided by the speedy trial statute, where the
original documents were nol prossed because of the
prosecuting attorneys legitimate belief that the original documents were defective
because they did not contain the word
"knowingly." The court stated that in the event a second indictment was required
because the original indictment was defective,
the 180-day period would commence with the filing of the first indictment only in
those instances where the second indictment was
returned for the sole purpose of circumventing the speedy trial statute.

*34677 In prosecution for willful refusal to comply with order of fire


commission, delay of 98 days between defendant's
arraignment on original accusatory instrument and filing of superseding
information did not violate defendant's right to speedy
trial where two adjournments were consented to by defense and remaining delay was
attributable to pre-trial motion practice.
People v Cibro Oceana Terminal Corp. (1990) 148 Misc 2d 149, 559 NYS2d 782.

The speedy trial statute was held to have commenced with the return of
superseding indictments, in State v Mills (1983) 307 NC
504, 299 SE2d 203, where the court, affirming the defendant's conviction on three
counts of first-degree murder and one count of
conspiracy to commit murder, found that the superseding indictments were
appropriate, were obtained in good faith, and were
returned before a plea of guilty or the commencement of the trial. The
superseding indictments were obtained to correct an error
in the murder date appearing in the original indictments. The court concluded
that the new indictments were necessary where the
date could have been critical to the state's ability to prove the defendant's
guilt if the defendant chose to offer evidence at
trial to establish an alibi defense. The court noted that the correction of the
indictments was also relevant to insure protection
of the defendant from double jeopardy.
In State v Moore (1981) 51 NC App 26, 275 SE2d 257, the court held that the
speedy trial period commenced to run in relation to
the superseding indictment where the obtaining of the new indictment appeared to
have been both appropriate and in good faith. The
initial indictment against the defendant charged that the alleged offenses
occurred on a certain date despite the fact that all the
evidence was to the effect that the offenses occurred approximately 26 days later.
Therefore, a new indictment was issued
specifying the proper dates and this indictment superseded the original
indictment, which by statute had to be dismissed. The
court concluded that the state had valid reason to obtain a new indictment where
the dates set forth in the indictment could have
been critical to its capacity to prove its case if, for example, the defendant had
offered evidence tending to establish an alibi
defense. However, the court determined that the defendant was entitled to a new
trial due to the introduction of inadmissible
evidence.

In Commonwealth v Brocklehurst (1980) 491 Pa 151, 420 A2d 385, the court,
affirming a conviction for burglary, held that the
speedy trial rule commenced to run from the filing of the second complaint where
the initial complaint was withdrawn by the
prosecution after the defendant charged that it was fatally defective since it
named the wrong person as the accused. At the time
of the defendant's arrest, it was discovered that an incorrect middle name was
included in the complaint. At his preliminary
hearing the defendant objected to an amendment correcting the middle name. The
prosecution then withdrew the complaint and
immediately filed a new one that included the defendant's proper name. The court
stated that the only complaint filed against the
defendant was the second complaint since only it properly named the defendant as
the accused and that therefore the speedy trial
rule became operable only with the filing of the second complaint.

In prosecution for aggravated robbery in which on state's motion, original


indictment was dismissed for alleging that actions of
defendant were "with the effective consent" of victim instead of "without the
effective consent", time period for speedy trial
purposes on indictment filed two days later commenced on date of dismissal.
Garcia v State (1984, Tex App Corpus Christi) 673 SW2d
696.

[c] Held to be tolled

Speedy trial rule was tolled and Defendant's right to speedy trial was not
violated by withdrawal of original complaint and
subsequent refiling, where state withdrew original complaint in midst of
protracted extradition proceedings to correct misspelling
of defendant's name and to drop charge of conspiracy, where both corrections were
in response to problems raised by U.S. Department
of State and were intended to expedite defendant's extradition, and where both
corrections were necessary to remedy substantive
defects in original complaint. Commonwealth v De Marco (1984) 332 Pa Super 315,
481 A2d 632.
s 8. Where prosecution witness was alleged to be unavailable

[a] Held to continue to run

State v Stone (1982) 65 Hawaii 308, 651 P2d 485, s 8[a], is overruled by State v
Balauro (1992) 73 Hawaii 70, 828 P2d 267, s
5[b], to extent it is inconsistent with rule of penal procedure excluding period
of time when no charges that could have been
joined with dismissed charges are pending against defendant and providing that
time accrued on first charge is applicable to second
charges.

*34678 The courts in the following cases, wherein the prior accusatory
instruments were terminated by the prosecution because
of the alleged unavailability of witnesses for the state, held that the speedy
trial periods were not interrupted by such
termination that resulted in the bringing of subsequent accusatory instruments.

In State v Washington (1981) 273 Ark 82, 617 SW2d 3, the court, affirming an
order dismissing charges of first-degree battery
against the defendants for failure to bring them to trial within three terms of
court as required by rule, held that the speedy
trial rule provisions were not tolled by a nolle prosequi of the original
information and the refiling of the same charges where
the prosecuting attorney obtained dismissal of the original information when he
could not obtain the cooperation of a material
witness. The court stated that the action by the state of entering a nolle
prosequi or dismissing with leave to refile did not
toll the running of the speedy trial provisions absent a showing of good cause for
the period of delay. The court concluded that
in this case the state had apparently used the procedure of taking a nolle
prosequi to bypass the speedy trial rule.

Under provisions of speedy trial rule, when state enters a nolle prosequi,
speedy trial period continues to run and state may not
refile charges based on same conduct after period has expired. Accordingly, state
would not be permitted to refile attempted
murder charges against defendant where victim was shot on February 8, 1988, and
rendered comatose; where defendant was charged with
second-degree murder, was arrested in Illinois and was then extradited to Florida
on March 30, 1988; where, pursuant to speedy
trial rule, defendant made written demand for speedy trial on July 22, 1988;
where, 33 days before expiration of speedy trial
period, state entered nolle prosequi, noting that victim was comatose and there
were no eyewitnesses; where defendant was then
transported to Tennessee and imprisoned for escape; and where, later, Florida
authorities located two eyewitnesses, victim emerged
from his coma and, long after initial speedy trial period had run, state filed
information charging defendant with attempted
first-degree murder of victim. State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S
391 (while defendant was in Tennessee prison, his
witnesses might have relocated and their memories faded, and other evidence might
have grown stale or disappeared; to allow state
to prosecute under these circumstance would violate intent of rule).
Conclusion that state nolle prossed to avoid speedy trial rule was supported by
following facts: at calendar call, with
approximately 10 days remaining of 175 days provided by speedy trial rule, state
announced it was not ready for trial because
victim was in Puerto Rico, and moved for continuance and extension of speedy
trial; when these motions were both denied state nolle
prossed and, two weeks later, refiled same charge. Accordingly, defendant was
entitled to discharge based on his right to speedy
trial. State v McFadden (1993, Fla App -4) 622 So 2d 483, 18 FLW D 1511.

Affirming an order dismissing an indictment for pretrial delay, the court, in


State v Stone (1982) 65 Hawaii 308, 651 P2d 485,
held that it was not error to grant the motion to dismiss where the defendant was
not brought to trial within 6 months of his
arrest as provided by the speedy trial rule. The original assault charges were
dismissed on motion of the prosecution after it was
learned that one of the assault victims had died. Over a year later the defendant
was indicted on assault charges involving the
same incident. Noting that there were no periods of time that were excludable
from the 6-month period, the court impliedly held
that the speedy trial period ran from the initial arrest and was not interrupted
by the dismissal and reindictment.

Prosecutor's dismissal of tab charges and filing of formal complaint alleging


same charges, following trial court's denial of
continuance sought by prosecution to permit attendance of its only witness at
trial, did not cause speedy trial period to start
running afresh. State v Kasper (1987, Minn) 411 NW2d 182.

[b] Held to be tolled

In the following cases in which the prior accusatory instruments were terminated
by the prosecution when prosecution witnesses
were allegedly unavailable, the courts held that the applicable speedy trial
periods were tolled between the termination and the
proceedings under subsequent accusatory instruments.

Period from when prosecution entered nolle prosequi on original indictment, on


ground that alleged victim was unavailable, until
grand jury returned second indictment was deducted from speedy trial period since,
during that period, defendant was neither
incarcerated nor subjected to other substantial restrictions on his liberty.
State v Johnson (1989, Del Super) 564 A2d 364.

*34679 Refiling of indictment for murder did not offend speedy trial rule
that allowed for window period, after original
indictment for first-degree murder and first degree arson had been nolle prossed
because of state's inability to locate witnesses
six years earlier, where running of speedy trial period had been tolled with
dismissal of indictment, in absence of showing that
dismissal was tactical or in bad faith. State v Dorian (1993, Fla App -3) 619 So
2d 311, 18 FLW D 856.

In People v Christensen (1983) 113 Ill App 3d 938, 69 Ill Dec 762, 448 NE2d 222,
revd on other grounds 102 Ill 2d 321, 80 Ill Dec
302, 465 NE2d 93, the court stated that the speedy trial clock would be tolled
where the initial indictment was nol prossed by the
state when an important witness disappeared. However, the court concluded that
the speedy trial statute was not violated since the
period of time during which the defendant was incarcerated in a federal prison
outside the state was not to be included when
computing the speedy trial time.

Overruling an earlier case, [FN11] the court in Bentley v State (1984, Ind) 462
NE2d 58, held that only that period during which
an accused was held under an original indictment which was dismissed due to the
unavailability of a witness is chargeable to the
state under a speedy trial statute when a second indictment is returned.
Therefore, the court concluded that a person accused of
armed robbery was given a speedy trial where he was brought to trial 11 months
after a second indictment was returned where he was
held for only 1 month under the original indictment before it was dismissed.

Reversing a conviction for aggravated assault, the court, in State v Hunt (1982)
8 Kan App 2d 162, 651 P2d 967, held that the
time elapsed between the defendant's arraignment under the first information and
the dismissal of that information was to be
included in computing the speedy trial period where the dismissal was obtained by
the state without a showing of necessity. The
state requested the dismissal on the ground that one of its witnesses could not be
located. A new information was subsequently
obtained that, following amendment, charged the defendant with the same aggravated
assault as well as an additional charge of
unlawful use of weapons. Noting that the missing witness did not testify at trial
and that the prosecution nonetheless obtained a
conviction, the court concluded that the missing witness' testimony, although it
could have strengthened the state's case, was
clearly not essential and that the dismissal of the first information was
therefore not based on necessity. The court added that
the state could have requested a continuance to extend the time limits due to the
temporary unavailability of material evidence.
However, the court affirmed the conviction for unlawful use of weapons since that
charge was not included in the first information
and the speedy trial period on that charge therefore ran only from the arraignment
under the second information. [FN12]

Time between prosecution's dismissal of information, because key witness could


not be found, and its refiling of information,
after witness was apprehended, was not includable in computing speedy trial
period. State v Batiste (1989) 231 Neb 481, 437 NW2d
125 (diverged from by State v Pettit, 233 Neb 436, 445 NW2d 890).

Affirming a conviction for aggravated and simple assault, the court, in


Commonwealth v Navarro (1982) 499 Pa 279, 453 A2d 308,
held that the 180-day time period under the speedy trial rule was tolled on the
date of withdrawal of the first written complaint
where there was no obvious attempt by the prosecution to evade the speedy trial
requirements. The defendant was charged in the
original complaint with assault, but that complaint was withdrawn by the
prosecution when it learned that the victim of the assault
had died of unrelated causes. A second complaint charging the same crime based on
the same incident was filed 115 days after the
withdrawal of the first complaint. Apparently concluding that the reason for the
withdrawal of the first complaint was valid, the
court held that the 180-day speedy trial period stopped running when the complaint
was withdrawn since the withdrawal effectively
terminated that complaint.

In prosecution for driving under influence of intoxicating liquor, in which


prosecution was unable to proceed due to
unavailability of witness, period of time between dismissal of charge without
prejudice and new citation would be excluded from
period of delay for speedy trial purposes, since defendant is no longer accused
after dismissal and therefore has no constitutional
speedy trial rights during interim period. State v Snide (1984) 144 Vt 436, 479
A2d 139.

*34680 In drug prosecution, calculation of time defendant was charged with


crime before trial did not include time between
dismissal due to failure to locate witness and refiling of information. Wehr v
State (1992, Wyo) 841 P2d 104.

[c] Held to run anew

The courts in the following cases, in which the prior accusatory instruments
were terminated by the prosecution due to the
alleged unavailability of prosecution witnesses, held that the applicable speedy
trial period began to run anew under the
subsequent accusatory instruments.

Affirming a conviction for burglary, the court, in State v Goodmiller (1963) 86


Idaho 233, 386 P2d 365, held that the defendant
had not been denied his statutory right to a speedy trial where he had been
brought to trial at the first term commencing after the
filing of the second information. The first information was dismissed on motion
of the prosecuting attorney on the ground that a
material witness was unavailable. The defendant was at liberty on bail under the
first information and his bail was exonerated at
the time of the dismissal. Holding that the absence of a material and essential
witness was "good cause" for the postponement of
the prosecution, the court impliedly held that the filing of the subsequent
information commenced a new running of the speedy trial
statute.

Reversing a judgment dismissing an information charging the defendant with rape,


aggravated battery, and aggravated robbery, the
court, in State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891, cert den
(US) 83 L Ed 2d 34, 105 S Ct 88, held that the
statutory speedy trial period began to run from the time of the defendant's
arraignment under the subsequent information where the
original information was dismissed at the request of the prosecution on a showing
of necessity. After the defendant was arraigned
on the first information, a number of continuances were granted to both the
defense and the prosecution, culminating in a final
request by the state for a continuance based on the difficulty in obtaining two
central witnesses for the trial. Both witnesses
were doctors who were vital to the chain of forensic evidence in the case. One
doctor was scheduled to take his medical board
examinations in another state at the time of trial, and the other physician had a
long-standing commitment to attend a professional
meeting in another state. The state's motion for a continuance was denied on the
ground that the guidelines for handling criminal
cases prevented a further continuance. However, the state's motion to dismiss the
information without prejudice was granted, with
a finding that the defendant would not be prejudiced by such action and that the
prosecution was not attempting to evade the speedy
trial requirements of the statute. Four days later, the identical charges were
refiled and the defendant was arraigned on the
second information. Prior to the rescheduled trial date, the defendant moved to
dismiss the information on the ground that he had
been denied his right to a speedy trial where the accumulated, unexcused delays
from the time of the arraignment under the first
information exceeded 180 days. The motion to dismiss was granted despite the
claim by the prosecutor that the dismissal of the
first information was a matter of necessity. Noting that a finding that the state
had made a showing of necessity for the
dismissal was implicit in the record and in the findings made, the court concluded
that the dismissal was necessary where the state
properly concluded that its witnesses, even though under subpoena, might not
appear on the scheduled trial date in the face of the
serious conflicting commitments. The court pointed out that if the state
proceeded with trial and either one of the witnesses
failed to appear, the state's case would have been badly crippled. The court
added that in such an eventuality the power of the
state to cite the witnesses for contempt would not fill the resulting void in the
presentation of the criminal case against the
defendant. The court pointed out that professional examinations, such as bar,
medical, and dental examinations, being given only
at stated times and places, an aspiring professional might well be tempted to
ignore a subpoena that conflicted with such
examinations, even in the face of a probable contempt citation. [FN13]

See State v Snide (1984) 144 Vt 436, 479 A2d 139, s 8[b].

s 9. Where prior accusatory instrument was filed in wrong court

In the following cases wherein the prior accusatory instrument was terminated by
the prosecution and the court in which that
instrument was filed lacked jurisdiction to prosecute the case, the courts held
that the applicable speedy trial period commenced
anew on the filing of the subsequent accusatory instrument in another court.

*34681 Denying a petition for a writ of habeas corpus, the court, in Ex parte
Snyder (1942) 110 Colo 35, 129 P2d 672, held
that the statutory speedy trial period was computed from the filing of an
information rather than a previously dismissed complaint
charging the same felony where the justice of the peace court in which the
complaint was filed lacked jurisdiction to adjudge the
ultimate guilt or innocence of the defendant. Pursuant to the original complaint
the defendant was admitted to bail pending a
preliminary examination. Prior to the date of the preliminary examination, the
complaint was dismissed on the prosecution's
motion. The defendant was thereafter charged in the subsequent information.
Noting that no preliminary examination was ever held
and that the defendant was never bound over to appear in the district court, the
court concluded that there was no starting point
for the computation of the statutory period of permissible delay in the district
court.
In Commonwealth v Frank (1979) 263 Pa Super 452, 398 A2d 663, the court held
that the speedy trial period commenced to run from
the date the second complaint was filed rather than from the date of the first
complaint where the first complaint was filed in
another county and was then dismissed by the prosecution on the ground that
jurisdiction did not lie in that county since the
crimes took place in the county in which the second complaint was filed.

s 10 Where prior accusatory instrument was terminated with leave to reinstate

The courts in the following cases, wherein the prior accusatory instruments were
terminated by the prosecution with leave to
reinstate, held that the applicable speedy trial period ran continuously from the
time of the prior accusatory instrument and was
not interrupted by the termination.

See United States v May (1985, CA6 Mich) 771 F2d 980, s 6.

See United States v Nesbitt (1988, CA7 Ind) 852 F2d 1502, cert den (US) 102 L Ed
2d 798, 109 S Ct 808, s 5[c].

Reversing a conviction for armed robbery, the court, in People v Nelson (1962)
25 Ill 2d 38, 182 NE2d 704, held that the
defendant's statutory speedy trial right was violated where he was not brought to
trial within 4 months after the date of
incarceration for a prior conviction. Following the defendant's conviction on
unrelated charges, the state's motion to strike the
indictment in this case with leave to reinstate was granted. Following the
reversal of the conviction on the unrelated charges,
the prosecution moved to reinstate the stricken indictment and the defendant was
subsequently tried and convicted on that
indictment. Acknowledging that if a delay in trial was caused or consented to by
the defendant, the statute would be tolled, the
court rejected the contention that the defendant in this case waived his speedy
trial right when he failed to object to the
prosecution's motion to strike with leave to reinstate since the defendant did not
indicate that he was willing to consent to an
indefinite tolling of the statute and the significance of his failure to object to
the state's motion was not explained to him of
record.

Affirming a judgment granting a defendant's motion for discharge on the ground


that he was denied his statutory right to a speedy
trial, the court, in People v Bauer (1979) 70 Ill App 3d 537, 27 Ill Dec 50, 388
NE2d 1013, held that the speedy trial statute was
not tolled following dismissal of the original information where the prosecution
obtained the dismissal with leave to reinstate.
The prosecutor made a motion to dismiss the information with leave to reinstate
after a material witness disappeared. After the
witness was located, he testified before the grand jury and an indictment was
returned against the defendant. The court also noted
that it could not determine from the record that the state had not attempted to
evade the speedy trial statute where it failed to
petition for a 60-day continuance permitted by statute and simply dismissed the
action instead.
Affirming a judgment dismissing an indictment on speedy trial grounds, the
court, in People v Rodgers (1982) 106 Ill App 3d 741,
62 Ill Dec 165, 435 NE2d 963, held that the 160-day statutory time period for
defendants on bail which took effect when the
defendant demanded a trial under the first indictment also applied to the
subsequent indictment. The defendant was originally
indicted in Cook County for possession of a stolen vehicle in that county. A
motion by the state to strike the charges with leave
to reinstate was subsequently granted. At the same time, the defendant demanded
an immediate trial. The charges were never
reinstated and the defendant's arrest record was subsequently expunged on his
motion. Almost 1 year after the expungement, the
defendant was indicted in Kane County for possession of the same vehicle in Kane
County. The court concluded that the Kane County
charge was a restatement of the original Cook County charge and that inquiry into
the defendant's allegation of speedy trial
violation must consider the time that had elapsed since the first charge. Stating
that the speedy trial statute was not tolled by
the stiking of a charge with leave to reinstate, the court determined that the
indictment was properly dismissed since more than
160 days had passed since the defendant's demand for trial.

*34682 Charges of theft and conspiracy to commit theft were properly


dismissed for violation of speedy trial provisions where
state had previously sought leave to strike charges with leave to reinstate, while
appealing dismissal of forgery counts and
joinder of remaining counts; joinder issue was not appealable since it was
interlocutory order, and state failed to show that order
dismissing forgery charges affected its ability to prosecute theft and conspiracy
charges; thus, no tolling of speedy trial period
took place as result of appeals. People v East-West Univ. (1994, Ill App 1st
Dist) 202 Ill Dec 55, 637 NE2d 594.

See State v Lamb (1988) 321 NC 633, 365 SE2d 600, s 5[b].

s 11. Other particular circumstances

The courts in the following cases, wherein the prior accusatory instruments were
terminated by the prosecution and factors
existed other than those treated in s s 6-10, supra, held that the applicable
speedy trial periods commenced to run anew with the
introduction of the subsequent accusatory instruments.

Time period from filing of superseding indictment adding codefendant to issuance


of order detaining codefendant was excludable
from 70-day Speedy Trial Act (STA) period for both codefendant and defendant. 18
U.S.C.A. s 3161(h). U.S. v. Castillo-Pacheco, 53
F. Supp. 2d 55 (D. Mass. 1999).

See United States v Gonzales (1990, CA5 Tex) 897 F2d 1312, s 5[a].
In prosecution of defendant for conspiracy to embezzle union pension plan funds
and for making false statements to federally
insured bank, period of continuances granted by trial court after government's
issuance of superseding indictment tolled statutory
70-day period; such tolling served ends of justice where plea negotiations with
defendant had failed and government had new
evidence to submit in conjunction with superseding indictment. United States v
Williams (1994, CA5 Miss) 12 F3d 452.

Defendant convicted of narcotics and firearms offenses was not denied his right
to speedy trial on firearms and drug counts
because superseding indictment alleging those offenses was not filed under 200
days after his arrest on drug conspiracy charge
alleged in original indictment and combined for trial with offenses charged in
superseding indictment. Statute requiring that
indictment or information be filed within 30 days from date on which individual
was arrested on charges was not applicable, because
defendant was already in custody being detained under first indictment when second
indictment containing additional charges was
filed. Therefore, there actually was no arrest in connection with subsequent
charges, hence no terminus a quo for counting maximum
permissible delay between time of arrest for filing indictment relating to
charges. United States v Beal (1991, CA8) 940 F2d 1159.

Fact superseding indictment was filed more than 30 days after defendants were
arrested did not mean that, under the 30-day rule
of the Speedy Trial Act, the additional charges it contained were not timely filed
and had to be dismissed; Speedy Trial Act did
not prevent government from obtaining a superseding indictment more than 30 days
after the arrest to add different charges than
those contained in the original indictment. 18 U.S.C.A. s 3161(b). U.S. v. Feng,
25 Fed. Appx. 635 (9th Cir. 2002).

District court was not authorized to extend to 180 days the 70-day limit for
retrial under the Speedy Trial Act following
declaration of mistrial by reason of defendant's interlocutory appeal between
trials on basis that passage of time had led to
unavailability of witnesses. 18 U.S.C.A. s 3161(e). U.S. v. Pitner, 307 F.3d 1178
(9th Cir. 2002).

Lapse of approximately two years between date of arrest under first indictment
and trial under second indictment did not deny
murder defendant right to speedy trial where not more than one and one-half years
of intervening time was attributable to state,
defendant, who was represented by able counsel, although claiming past denial of
speedy trial, did not make known at any time that
he desired speedy trial in future, some delay was caused by defendant's motion for
psychiatric examination, and some delay was
caused by trial court's and parties' agreement to await outcome of decisions by
United States Supreme Court, Alabama Supreme Court
and Alabama Court of Criminal Appeals in case concerning appropriate instructions
to avoid constitutional infirmity of state
statute relating to death penalty and life imprisonment without parole. Ringstaff
v. State, 451 So. 2d 375 (Ala. Crim. App. 1984),
related reference, 861 F.2d 644 (11th Cir. 1988), reh'g granted, (Feb. 6, 1989)
and on reh'g, 885 F.2d 1542 (11th Cir. 1989).

*34683 Affirming a conviction for three counts of abortion, the court, in


People v Wilkes (1960, 2d Dist) 177 Cal App 2d 691,
2 Cal Rptr 594, held that the 60-day period for bringing the defendant to trial
commenced to run from the filing of the subsequent
information. The defendant was originally charged in an information with
attempted abortion by supplying and administering a
"vaginal pack." A motion to amend the information by interlineation by
substituting the words "a substance" in place of "vaginal
pack" having been denied, the prosecution successfully moved to dismiss the
original information. A new information was
subsequently filed charging the defendant with three counts of abortion and
containing the substituted words. Noting that the
dismissal of a felony charge was not a bar to another prosecution for the same
offense, the court concluded that the time period
under the speedy trial statute ran from the reinstatement of the charges.

Affirming a conviction for robbery, the court, in People v Allen (1963, 3d Dist)
220 Cal App 2d 796, 34 Cal Rptr 106, held that
the filing of a new indictment charging a new crime reinstated the speedy trial
period. The defendants were originally charged by
information with attempted robbery and assault by means of force likely to produce
great bodily injury. The prosecution's motion
to dismiss the information in order to charge the defendants with robbery was
granted over the defendant's objection. The
defendants were thereafter indicted for robbery and the same degree of assault.
The court concluded that the institution of a new
proceeding in the form of an indictment charging robbery rather than an attempt
reinstated the 60-day period.

Affirming robbery convictions, the court, in People v Faulkner (1972, 1st Dist)
28 Cal App 3d 384, 104 Cal Rptr 625 (disapproved
on other grounds People v Hall, 28 Cal 3d 143, 167 Cal Rptr 844, 616 P2d 826
(superseded by statute as stated in People v Sweeney
(4th Dist) 150 Cal App 3d 553, 198 Cal Rptr 182, hear gr by sup ct) and
(superseded by statute as stated in People v Callegri (3d
Dist) 154 Cal App 3d 856, 202 Cal Rptr 109) and (superseded by statute as stated
in People v McGriff (2d Dist) 158 Cal App 3d 1151,
205 Cal Rptr 232)) and (disapproved on other grounds People v Bustamante, 30 Cal
3d 88, 177 Cal Rptr 576, 634 P2d 927), held that
the filing of a subsequent felony information reinstated the 60-day period under
the former speedy trial statute. The original
information was dismissed by the trial court in the interest of justice on the
motion of the district attorney. The court
concluded that the defendant was brought to trial within the statutory period
where the dismissal in furtherance of justice
constituted good cause within the meaning of the former speedy trial statute and
the filing of a new information reinstated the
60-day period.

Dismissal without prejudice of securities fraud charge and newly instituted


charges that added racketeering counts did not
violate defendant's right to speedy trial where there was no proof of
prosecutorial bad faith, new case was filed two days before
prosecution requested that first case be dismissed, and arraignment was held and
trial set within speedy-trial deadline for first
case; subsequent delays were not caused by prosecution. People v Kraemer (1990,
Colo App) 795 P2d 1371.

In case wherein prosecution voluntarily dismissed burglary information more than


180 days after filing, it would not be precluded
from subsequent filing of misdemeanor theft information against defendant, where
much of initial delay was attributable to
defendant's request for continuance. Stewart v State (1985, Fla App -1) 470 So 2d
101, 10 FLW 1394, ctfd ques ans, approved (Fla)
491 So 2d 271, 11 FLW 322.

Trial court lacked discretion to continue trial beyond speedy trial period after
state filed new information covering same
offenses with which defendant had previously been charged; defense counsel
requested time to review new information but did not
request continuance. West's F.S.A. RCrP Rule 3.191. Dechaine v. State, 751 So. 2d
100 (Fla. Dist. Ct. App. 4th Dist. 1999).

Defense continuance during pendency of original information amounted to a waiver


of defendant's speedy trial rights as to a
subsequently filed information with new charges that arose out of the same
incident that formed basis of original charge, and thus,
defendant's failure to invoke a new demand for speedy trial did not start the
speedy trial clock running again. West's F.S.A. RCrP
Rule 3.191(a, b). Atkins v. State, 785 So. 2d 1219 (Fla. Dist. Ct. App. 4th Dist.
2001).

*34684 In People v Woodruff (1981) 88 Ill 2d 10, 58 Ill Dec 869, 430 NE2d
1120, the court, reinstating convictions for armed
robbery and home invasion, held that the statutory speedy trial period as applied
to a juvenile defendant commenced to run from the
time of the order authorizing the juvenile to be prosecuted as an adult and not
from the time that the juvenile was originally
taken into custody and charged as a juvenile. The original petition charging the
defendant with being a delinquent minor alleged
that he committed the offenses of armed robbery, armed violence, and home
invasion. The state's motion to have the defendant tried
as an adult was granted and an order was subsequently entered authorizing such a
trial. The court concluded that the 120-day
speedy trial period did not commence in juvenile cases until the court entered an
order authorizing prosecution of the juvenile as
an adult since the speedy trial statute refers to persons held in custody for an
alleged offense, and in a proceeding under the
juvenile court act, the minor is not held in custody for an offense.

However, in People v Sanders (1980) 86 Ill App 3d 457, 41 Ill Dec 453, 407 NE2d
951, the court, affirming a conviction for two
counts of murder, held that the defendant was not denied his statutory right to a
speedy trial where the 120-day statutory period
within which the defendant must be brought to trial was tolled between the nolle
prosequi of the first indictment and the
defendant's arrest more than 1 year later. The prosecution requested the nolle
prosequi of the first indictment after it
determined that it lacked sufficient competent evidence to convict the defendant.
The defendant was thereupon released.
Approximately 1 year later the defendant was again indicted for the same murders
and the warrant was issued for his arrest, but he
was not apprehended for another 8 months. Noting that when a charge is nolle
prossed and the defendant released from custody
without bond, there is no charge pending against him and that the speedy trial
statute runs only when a charge is pending against a
defendant, the court concluded that the statute was tolled during the period
between the defendant's release on the first
indictment and his arrest under a subsequent indictment. Distinguishing this
situation from that of an SOL (charges stricken with
leave to reinstate), where the rule is that the statutory period continues to run
after that disposition, the court concluded that
there were sufficient differences between an SOL and a nolle pros to find that the
statutory period was tolled by a nolle pros
where the defendant was neither in custody nor on bail or recognizance.

Nolle prosequi obtained by state, followed by reindictment on identical charges,


did not violate defendants' speedy trial rights
where there was no indication that state's acts were vindictively motivated and
where defendants were not in custody, on bond, or
recognizance during period between granting of nolle prosequi, and speedy trial
statute therefore did not apply to them. People v
Freedman (1987, 1st Dist) 155 Ill App 3d 469, 108 Ill Dec 165, 508 NE2d 326.

Motion by state to nol-pros escape charge against defendant tolled statutory


period for speedy trial statute where state made
motion at sentencing hearing which defendant was given natural life sentence for
murder conviction, not to avoid speedy trial
statute but rather in belief that it would not be in interest of justice to
prosecute escape charge in view of life sentence.
People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d 1258,
app den (Ill) 125 Ill Dec 225, 530 NE2d 253.

No showing was made that state obtained nolle prosequi on original charge
against defendant seeking to gain some technical
advantage over defendant, and speedy trial term was tolled until identical charge
was refiled where state nolled charges in order
to obtain chemical analysis of substance defendant had allegedly possessed, after
trial court denied continuance, and where, though
state obtained analysis 11 days after nolle prosequi and did not refile charges
for some eight months, delay was result of time
constraints imposed by high volume of cases, and purposes of speedy trial statute
were not frustrated. People v Decatur (1989, 1st
Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548 NE2d 509, app den (Ill) 142 Ill
Dec 884, 553 NE2d 398.

In prosecution for possession of cocaine, subsequent indictment roughly ten and


one-half months after arrest and six months after
nolle prosequi order and defendant's trial demand did not violate defendant's
right to speedy trial where trial court denied
state's motion for continuance, which state sought because laboratory analysis of
alleged cocaine was not available. People v
Alvelo (1990, 1st Dist) 201 Ill App 3d 496, 147 Ill Dec 131, 559 NE2d 131.

*34685 State's petition for writ of certiorari to the United States Supreme
Court was not an "appeal" within the meaning of
rule excluding appeal by state from speedy trial period and, therefore, did not
automatically toll the running of the 120-day
speedy-trial period upon docketing of appellate court's mandate. S.H.A. 725 ILCS
5/103-5; Sup. Ct. Rules, Rule 604(a)(4). People
v. Quick, 321 Ill. App. 3d 392, 255 Ill. Dec. 157, 748 N.E.2d 1227 (3d Dist.
2001).

In most situations, the State's decision to enter nolle prosequi on charges


against a defendant tolls the running of the
statutory speedy-trial period because the pending charge is terminated and the
refiling of the charge is the institution of a new
proceeding; however, a nolle prosequi will not toll the statutory speedy-trial
period if the State uses it to cause delay or to
avoid statutory limitations. S.H.A. 725 ILCS 5/103-5(a). People v. Hillsman, 264
Ill. Dec. 263, 769 N.E.2d 1100 (App. Ct. 4th
Dist. 2002).

In prosecution for second-degree burglary in which original information was


dismissed on state's motion in the interest of
justice, new charges filed nearly one year after original information started 90-
day speedy-trial period anew, despite fact that
charges were identical to those originally dismissed. State v Fisher (1984, Iowa)
351 NW2d 798.

Trial court properly found good cause for delay in bringing defendant to trial,
under statute providing that defendant must be
brought to trial within 90 days unless there is good cause for delay, where first
information was filed on January 21, 1991,
charging defendant with conspiracy to deliver or delivery of cocaine, where first
information was dismissed on March 1, 1991, as
result of negotiations between defendant and state whereby defendant was to work
as informant and charges were to be dismissed, and
where defendant did not work as informant and on June 18, 1991, another
information was filed charging defendant with same charge.
State v Ruiz (1992, Iowa App) 496 NW2d 789.

Prosecution made adequate showing of necessity for having voluntarily dismissed


counts of criminal complaint, thereby in effect
tolling speedy trial period, where, since state could not appeal dismissal in
criminal case of some counts of multi-count complaint
while remainder of counts remained pending in trial court, state had otherwise
faced prospect of losing effective right of appeal.
State v Clovis (1993) 254 Kan 168, 864 P2d 687.

In prosecution for forgery and uttering, in which defendant had been indicted on
two different occasions for same offenses, and
first indictment had been dismissed without prejudice following defendant's
request for disposition of detainer because state
failed to comply with intrastate detainer statute, speedy trial period commenced
at date on which detainer was filed on first
indictment rather than date on which first indictment was filed; accordingly,
defendant was denied his right to speedy trial where
18 months elapsed between date on which detainer was filed and date of conviction,
where total length of delay was substantial,
approximately 50 percent of delay was attributable to State's neglect in failing
to take action on defendant's request for
disposition on intrastate detainer, and defendant was potentially prejudiced by
delay. Lee v State (1985) 61 Md App 169, 485 A2d
1014, cert den 303 Md 115, 492 A2d 617.

Nolle pros by prosecution, which resulted from fact that victim of assault and
attempted murder who was only eyewitness refused
to testify, and from introduction by defense of victim's notarized statements
exonerating defendant from any wrongdoing, was in
good faith, and therefore time preceding second indictment would not be considered
in determining whether there was prejudicial
delay; uncontroverted evidence was presented later that defendant threatened
victim's life and life of her child and mother if she
testified against him. Clark v State (1993) 97 Md App 381, 629 A2d 1322.
Prosecutor's good faith mistake that police officer would be unable to identify
the defendant was valid reason for delay that
resulted from order of nolle prosequi, and, thus, reindictment did not violate
constitutional right to speedy trial. U.S.C.A.
Const. Amend. 5; Code 1972, s 99-17-1. State v. Shumpert, 723 So. 2d 1162 (Miss.
1998).

*34686 Defendant convicted of attempted aggravated felonious sexual assault


was not denied his right to speedy trial under
state or federal constitutions based on fact that there was 28-month delay between
filing of original indictment, which was
concluded when prosecution entered nolle prosequi and defendant's trial, which
occurred approximately 13 months after second
indictment was filed, where defendant did not assert his speedy trial rights, and
suffered no prejudice as result of delay. State
v Adams (1991, NH) 585 A2d 853.

Denying a defendant's motion to declare a speedy trial statute unconstitutional,


the court, in People v Overton (1976) 88 Misc 2d
531, 389 NYS2d 253, held that the speedy trial period was properly calculated from
the date of the filing of the subsequent
misdemeanor accusatory instrument where the statute provided that a 90-day speedy
trial period commenced from the filing of a
misdemeanor accusatory instrument that replaced an initial felony complaint. The
defendant was originally arraigned on a felony
complaint charging assault in the second degree and related offenses.
Subsequently, the original charges were reduced to the
misdemeanors of harassment and criminal mischief in the fourth degree. The
statute provided in such instances that a new 90-day
speedy trial period began to run from the filing of the misdemeanor instrument,
provided, however, that in no event was a speedy
trial period to run longer than 6 months from the filing of the original felony
complaint. The court had denied a prior motion to
dismiss on speedy trial grounds since, at the time the motion was made, the 90-day
period permitted by statute, as calculated from
the date of the filing of the new accusatory instrument, had not expired. Denying
the instant motion based on constitutional
grounds, the court rejected the defendant's claim that he was denied his
constitutional right to equal protection by the statute
and due process.

Adjournment granted at the People's request to obtain superseding indictment


should not have been charged to the People for
purposes of speedy trial calculation, where the People had declared their
readiness on the original indictment. McKinney's CPL s
30.30. People v. Anderson, 676 N.Y.S.2d 549 (App. Div. 1st Dep't 1998).

People's announcement of readiness for trial with respect to first indictment in


which defendant was charged with sex offenses
satisfied requirements of speedy trial statute with respect to superseding
indictment, where superseding indictment was directly
derived from felony complaint as reflected in first indictment, and crimes charged
were based on several groups of acts so closely
related as to constitute a single criminal incident, even though second indictment
added a new count and expanded dates of alleged
incidents. McKinney's CPL s 30.30. People v. Stone, 697 N.Y.S.2d 212 (App. Div.
4th Dep't 1999).
Reversing an order dismissing an indictment on speedy trial grounds, the court,
in State v Gross (1984) 66 NC App 364, 311 SE2d
41, review den 310 NC 746, 315 SE2d 706, held that the speedy trial statute
commenced to run from the time of the subsequent
indictment where the original charges were dismissed by the state due to the lack
of a report from the investigating officer. The
dismissal of the indictment took place approximately 156 days after the date of
the defendant's arrest under the original charges
but only 16 days after the date of indictment. Relying on State v Koberlein
(1983) 309 NC 601, 308 SE2d 442 (dismissal based on
failure of state to proceed with probable cause hearing due to unavailability of
prosecution witness held same as dismissal based
on finding of no probable cause), infra s 20, the court concluded that a
dismissal taken by the state for lack of a report from
the investigating officer was likewise analogous to a dismissal based on the
state's failure to proceed with a probable cause
hearing and that, under the speedy trial statute, a dismissal based on a finding
of no probable cause permitted the statutory time
to be computed from the time of the subsequent indictment rather than the time of
the defendant's arrest under the original charges.

Dismissal of first indictment by district attorney was proper, and terminated


all proceedings against defendant, and reindictment
11 months later did not violate defendant's rights under Speedy Trial Act where no
criminal proceedings occurred between
indictments, and defendant was not subject to prosecutorial control; though
defendant's bail bond should have been discharged,
failure to do so did not prejudice defendant where she was not required to appear
or render herself amenable to court orders or
process. State v Lamb (1987) 84 NC App 569, 353 SE2d 857, stay gr 319 NC 407, 354
SE2d 708 and review gr 319 NC 407, 354 SE2d 721
and writ granted (NC) 354 SE2d 722 and affd (1988) 321 NC 633, 365 SE2d 600.

*34687 Enrollment of defendant in accelerated rehabilitative disposition


program was not conviction, nor was successful
completion of program equivalent to finding of innocence, that would preclude
prosecution on second complaint of vehicular
homicide. Commonwealth v Davies (1985) 342 Pa Super 318, 492 A2d 1139.

Though state timely announced ready on theft indictment, that announcement did
not carry over to subsequent indictment for
offense of burglary which was brought after theft indictment was dismissed, even
though both indicted offenses had arisen out of
same transaction, and since burglary indictment was not returned until 512 days
after commencement of criminal action defendant was
entitled to dismissal of indictment on speedy trial grounds. Carr v State (1984,
Tex Crim) 733 SW2d 149.

Any announcement of readiness by prosecution to proceed would toll running of


speedy trial time period until time of filing of
subsequent indictment. Prosecution was thus lawfully able to delay trial of
incarcerated defendant for 285 days by filing four
consecutive identical indictments, and announcing "readiness" after each one,
despite statute requiring trial within 120 days.
Washington v State (1984, Tex App Dallas) 677 SW2d 142.
No speedy trial violation occurred by state's subsequent reindictment for
aggravated rape following earlier indictment simply
charging defendant with rape, since state's announcement of ready from earlier
indictment constituted announcement of ready on
second and third indictments arising out of same transaction, and since there was
no evidence that state delayed trial other than
delays occasioned by time involving and obtaining "rap sheet," penitentiary
packets, re-indictment by Grand Jury, discussions
concerning polygraph test, and agreed continuances. Presley v State (1985, Tex
App Fort Worth) 686 SW2d 764.

In prosecution in which (1) defendant was indicted for murder and convicted of
involuntary manslaughter but jury was unable to
reach agreement on punishment and mistrial was declared, (2) in retrial under
original murder indictment, defense motion for
mistrial on double jeopardy grounds was erroneously granted, and (3) defendant was
reindicted on charge of involuntary
manslaughter, speedy trial limitations were governed by state's commencement of
subsequent charge; delay caused by dismissal of
murder indictment and reindictment on lesser charge could not be attributed to
state since state's actions was necessitated by
trial court's nonmeritorious granting of mistrial in second trial under murder
indictment, making it at most invited error and
invited delay chargeable to defense. Durbin v State (1986, Tex App El Paso) 716
SW2d 131.

In murder prosecution in which (a) defendant was arrested and indicted and state
declared ready in March, 1984, (b) there were
written waivers of speedy trial in March and August 1984, (c) re-indictment was
filed in December, 1984, identical to first except
for presence of additional enhancement paragraph, and state then announced ready
under second indictment, (d) there was series of
agreed resets until May, 1985, and (e) state orally announced ready in May and
June 1985, with trial beginning in June, 1985, trial
court properly overruled defendant's motion to dismiss on speedy trial grounds
since both indictments referred to same single
offense, state's timely announcement of ready under first indictment transferred
to second, as did speedy trial waivers and agreed
continuances, excludable periods of time placed announcement under second
indictment well within statutory period, and defendant
failed to rebut state's prima facie showing that it had been ready since inception
of case. Thibodeaux v State (1987, Tex App
Houston (14th Dist)) 726 SW2d 601.

First indictments charging defendant with first-degree murder and use of firearm
in commission of felony as juvenile were without
effect, and thus speedy trial period did not commence until preliminary hearing on
second indictments, which charged him as adult,
and defendant's jury trial, which was commenced within five months after second
indictments, did not violate speedy trial rights,
given that juvenile court lacked authority to certify charges made in original
petitions, criminal warrants heard in general
district court supplanted original charges, and indictments returned on
certification supplanted earlier indictments. Code 1950, s
19.2-243. Willis v. Com., 556 S.E.2d 60 (Va. Ct. App. 2001).

IV. Termination of prior accusatory instrument attributable to defense


s 12. Generally

*34688 In the following cases in which the prior accusatory instruments were
terminated on motions of the defendants, the
courts held that the applicable speedy trial period commenced to run anew under
the subsequent accusatory instruments.

Likewise, in United States v Pereira (1978, ED NY) 463 F Supp 481, the court
held that the time period under the Speedy Trial Act
(18 U.S.C.A. s 3161) began to run from the time of the subsequent complaint where
the dismissal of the original complaint was
obtained by the defendant on nonspeedy trial grounds.

In United States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed Rules Evid Serv 454,
the court, affirming convictions for credit
transaction violations, held that the time limitation under the Speedy Trial Act
(18 U.S.C.A. s 3161(d)(1)) began to run anew with
reindictment where the first indictment was dismissed at the defendant's request.

After original indictment was dismissed pursuant to defendant's motion, Speedy


Trial Act (STA) requirement that defendant be
indicted within 30 days of arrest was refreshed and caused STA clock to begin
running anew. 18 U.S.C.A.s 3161(d). U.S. v. Varela,
40 Fed. Appx. 490 (9th Cir. 2002).

Affirming a conviction for robbery, the court, in State v Avriett (1975) 25 Ariz
App 63, 540 P2d 1282, held that the refiling of
charges following a dismissal without prejudice started the speedy trial period
under the state rule to run anew. The original
charges were dismissed on the defendant's motion with leave for the state to
refile on the ground that 93 days had passed since the
arraignment, 3 days in excess of the speedy trial period. The court concluded
that a dismissal without prejudice to refile the
charge would have little meaning if it were not implied that the speedy time
period would begin to run anew on the refiling of the
charges. The court also noted that the original charges were allowed to be
refiled since there was no showing of prejudice to the
defendant by the 3-day delay.

Speedy-trial period commenced running on date charges, which had been dismissed
on defense motion, were reinstated. Rules Crim.
Proc., Rule 28.1(c). Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708 (1997).

And in Re Application of Rosenberg (1937) 23 Cal App 2d 265, 72 P2d 559, where
petitioner was first indicted by the grand jury on
June 25, 1937, to which indictment he interposed a demurrer which was sustained on
July 6, 1937, and the superior court ordered the
case resubmitted to the grand jury, which was done on August 24, 1937, and on
August 25, petitioner moved for a dismissal of the
proceedings on the ground that he had not been brought to trial within sixty days
of the return of the indictment of June 25, 1937,
contrary to the provisions of the speedy trial statute the court said that it
would seem that the dismissal of the proceedings and
the order of submission of the case to the same grand jury initiated an entirely
new proceeding, and the indictment should not be
dismissed, particularly when the filing of the new indictment was in response to a
demurrer interposed by petitioner.

See also People v Conway (1969, 2d Dist) 271 Cal App 2d 15, 76 Cal Rptr 251
(disapproved on other grounds Owens v Superior Court
of Los Angeles County, 28 Cal 3d 238, 168 Cal Rptr 466, 617 P2d 1098), where the
court, affirming a burglary conviction, held that
the defendant had been brought to trial within the speedy trial time period under
a second information that had been filed after
the first information was dismissed on the defendant's motion. Noting that the
dismissal of the first information was not a bar to
the filing of the second information, the court concluded that the defendant had
been tried within the 60-day speedy trial period
of the former statute where the delay between the filing of the second information
and the defendant's trial, less excludable
delays attributable to the defendant, did not exceed the speedy trial period.

However, in State ex rel. Back v Starke Circuit Court (1979) 271 Ind 82, 390
NE2d 643, the court, discharging relators in a
mandamus proceeding, held that the speedy trial period was to be calculated from
the date of the relators' arrest under the
original affidavit and information and that the relators had not waived their
speedy trial rights by failing to take affirmative
action to obtain a trial within the 1-year speedy trial period where that period
had already expired when the subsequent charges
were filed. The original charges against the relators were dismissed on their
motion approximately 13 months after they were
filed; 1 month later identical charges were filed. Approximately 1 year after the
refiling of the charges, the relators filed a
motion for discharge, which was denied. The state argued that the relators had a
duty to raise their right to discharge at the
earliest possible date and that their failure to file a motion for discharge
earlier than they did constituted a waiver of that
right. The court concluded that, taking into consideration the delays chargeable
to the relators, which acted only to extend the
time limitation by the amount of the delays, the 1-year speedy trial period ran
out at the time the charges were refiled and that
any action or inaction after expiration of the state's right to bring the relators
to trial could not have contributed to the loss
of that right. [FN14]

*34689 Where indictment against defendant was dismissed and, due to late
service of written notice of dismissal on state,
state did not file notice of appeal until 93 days later, state would be charged
with that period in determining whether 6-month
speedy trial time limitation had elapsed before retrial of defendant. State was
also charged with 71-day period between date
defendant first failed to appear in court following reinstatement of indictment
and date when he was returned on bench warrant.
People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52, app withdrawn 84 NY2d 868.

Speedy trial period that had commenced when defendant made first appearance on
May 6 stopped on June 3, when charges were
dismissed, and second speedy trial period commenced with his appearance on refiled
charges on June 24 where, inter alia, dismissal
of first charges was on defendant's motion and nothing nothing in record indicated
state had sought dismissal to circumvent speedy
trial rule. State v Tiedeman (1988, SD) 433 NW2d 237 (citing annotation).

In Mealy v Commonwealth (1952) 193 Va 216, 68 SE2d 507, which involved the
question as to the applicability of a statute relating
to the time within which an indictment must be tried and providing for the
discharge of the accused "if there be three regular
terms of the circuit or four of the corporation or Hustings court in which the
case is pending after he has so held without a
trial," unless the failure to try the accused was caused by enumerated exceptions,
and in which the court pointed out that the
admitted object of the statute was to give the accused a speedy trial as granted
by the constitution, it was held that the fallacy
of the contention of defendant, who sought to invoke the statute, was that he was
here attempting to add the continuances under the
original indictments, which were quashed on his motion, to the continuances under
the new indictment upon which he was tried and
convicted, which the court stated could not be done. The court said that on the
timely motion of the defendant the original
indictments became of no effect, and admittedly three terms of court had not
passed between the return of the new indictment and
the trial resulting in the conviction complained of; therefore the statute quoted
did not here apply.

A statute providing for the discharge of persons held under indictment for
offenses who are not accorded trial within the
reasonable time prescribed thereby, agreeably to the constitutional provision
granting prompt trial in criminal cases, was
construed in a case where it appeared that the defendant was charged with the same
offense in two successive indictments, State v
McIntosh (1918) 82 W Va 483, 96 SE 79, to mean that in the case of two such
indictments, the accused was not entitled to count
under that statute any term at which he procured a continuance of either
indictment on his own motion, or otherwise prevented a
trial thereof.

s 13. Where prior accusatory instrument was terminated on speedy trial grounds

The courts in the following cases, in which the prior accusatory instruments
were terminated on the defendant's motions based on
the failure to grant a speedy trial as provided by statute, held that the
applicable speedy trial period commenced to run anew
under the subsequent accusatory instruments that replaced the terminated
instruments.

Where defendant filed motion to dismiss first indictment on grounds that 70-day
time limitation under Speedy Trial Act (18
U.S.C.A. s 3161 et seq.) had expired, trial court granted defendant's motion and
dismissed first indictment, and grand jury
reindicted defendant on same four counts, Speedy Trial Act's 70-day time limit for
trial on second indictment did not begin to run
at time defendant was reindicted on October 15, 1992, but rather it began to run
when defendant made his first appearance before
judicial officer at his arraignment on March 8, 1993, pursuant to 18 U.S.C.A. s
3161, which provides that if indictment is
dismissed on motion of defendant and subsequent indictment is returned charging
him with same offense, trial of defendant "shall
commence within seventy days from the filing date .-.-. of the .-.-. indictment,
or from the date the defendant has appeared before
a judicial officer of the court in which such indictment is pending, whichever
date last occurs". United States v Colon (1993, DC
Mass) 831 F Supp 912.

Indictment was dismissed on defendant's motion, though trial court initially


rejected motion and only later dismissed without
prejudice when government asked it to reconsider, and subsequent return of new
indictment triggered new 70-day time period;
further, defendant's contention that, since dismissal had been based on violation
of Speedy Trial Act, 70-day clock should not have
been reset was without merit. United States v Magana-Olvera (1990, CA9 Wash) 917
F2d 401, 31 Fed Rules Evid Serv 703.

*34690 For charges which may be brought after dismissal on motion of


defendant under Speedy Trial Act, the Act's 30-day and
70-day periods begin to run anew from subsequent arrest or indictment, rather than
from date of original arrest or indictment. 18
U.S.C.A. s 3161(d). U.S. v. Brown, 183 F.3d 1306 (11th Cir. 1999).

Affirming a conviction for one count of sale of heroin, the court, in State v
Gutierrez (1978, App) 121 Ariz 176, 589 P2d 50,
held that the speedy trial period ran from the time of a subsequent indictment
where the initial complaint was dismissed without
prejudice on the defendant's motion to dismiss for lack of a speedy trial. The
defendant was thereafter indicted on the same
charges. The court stated that, following the dismissal of a criminal action with
leave to refile, which dismissal was based on
the denial of a speedy trial, the time limits of the speedy trial rule begin anew
with the filing of the new information or the
issuance of a summons following the grand jury indictment.

In People v Godlewski (1943) 22 Cal 2d 677, 140 P2d 381 (for prior opinion see
(Cal App) 132 P2d 540), where defendant contended
that dismissal of the first complaint filed against him in justice's court and
charging certain felonies barred prosecution against
him under an information subsequently filed in the superior court charging him
with the same offenses, and that if it did not, his
constitutional right to a speedy trial was impaired because the time within which
he was entitled to trial might not be
indefinitely extended by successive new prosecutions for the same offense where
prior proceedings had been dismissed because of
failure to prosecute, the court denied this contention, pointing out that when the
first charge, that is, the one filed in the
justice's court, was dismissed because of the failure to bring him to trial within
the statutory period, that charge was no longer
pending against him, and there was no reason why another information might not be
filed against him after such dismissal, the court
in this connection stating that he had had the first charge dismissed and thus his
right to a speedy trial protected, and that the
filing of a new information for the same offense commenced a new period of time.

Denying a petition for a writ of mandate to compel the dismissal of robbery


charges for failure to afford the petitioners their
constitutional right to a speedy trial, the court, in Crockett v Superior Court of
Santa Clara County (1975) 14 Cal 3d 433, 121 Cal
Rptr 457, 535 P2d 321, held that the speedy trial period began to run anew under a
subsequent information where the petitioners
failed to show that they were prejudiced by the delays that occurred prior to that
information. The original information was
dismissed on the petitioners' motion due to the state's failure to comply with the
speedy trial statute requiring that a defendant
who is incarcerated on other charges must be brought to trial within 90 days after
delivery to the district attorney of a written
notice demanding trial on the charges in the accusatory instrument. The state
thereafter obtained a new information charging the
same crimes. The court stated that if an accused cannot show that he has been
prejudiced by the bringing of the new information
and the state is not otherwise barred by limitations applicable to the filing of
an information or presentment of an indictment,
the rule is that the statutory time period within which to bring a defendant to
trial starts anew. The court concluded in the case
at bar that part of the delay was attributable to the petitioners' failure to move
more expeditiously to dismiss the second
information. The court also found that the petitioners' claim of prejudice was
insufficient to compel dismissal of the charges and
to permit the petitioners to escape prosecution.

Though when felony and misdemeanor charges were consolidated, misdemeanor was
governed by felony speedy trial period, State could
not extend speedy trial limits by dropping misdemeanor charges after timely
discharge motion was filed and then later refiling
felony and misdemeanor charges arising from same episode in attempt to revitalize
misdemeanors. Coleman v Eaton (1989, Fla App -5)
540 So 2d 915, 14 FLW 799.

Reversing an order granting a defendant's motion for dismissal of an indictment


on the ground that more than 6 months elapsed
from the date of arrest to the trial date, the court, in State v Fair (1981) 63
Hawaii 314, 627 P2d 277, held that the 6-month
speedy trial period began to run from the date of the refiling of the indictment
and that the defendant had therefore not been
denied his right to a speedy trial. The first indictment had been dismissed on
the defendant's motion on the ground that more than
6 months had elapsed from the date of arrest to the trial date. The state
subsequently sought and obtained a new indictment
charging the defendant with the same offense. The court concluded that the case
was controlled by the state statute that provided
that the 6-month speedy trial period commenced from the date of refiling of the
charges in cases where an initial charge is
dismissed on the motion of the defendant.

*34691 In State v McGowan (1942) 113 Mont 591, 131 P2d 262, in which it
appeared that the first indictment of defendant for a
felony was filed on June 5, 1941, and on December 26, 1941, a motion to dismiss
was granted because defendant was not brought to
trial within six months after the filing of the information, and a second
information charging the same offense was filed before
another judge in January, 1942. Defendant demurred on the ground that the second
information was barred by a section of the Code
providing that "if a defendant, whose trial has not been postponed upon his
application, is not brought to trial within six months
after the finding of the indictment, or filing of the information," the
prosecution must be dismissed, and it was also contended
that defendant's incarceration was in violation of an article of the state
constitution providing for a speedy trial. It was held
that the trial court erred in ordering the second information dismissed, in view
of another section of the Code which provided that
"an order for the dismissal of an action, as provided in this chapter, is a bar to
any other prosecution for the same offense if it
is a misdemeanor, but it is not a bar if the offense is a felony." The court
approved the language in State v Le Flohic (1914) 127
Minn 505, 150 NW 171, where it was said: "Whether a trial is a speedy trial within
the Constitution is a judicial question. The
legislature cannot say and does not say that a trial is speedy if had within the
time . . . mentioned in the section of the statute
quoted. It does say, and it properly may say in regulating criminal procedure,
that an indictment not tried as therein provided
shall be dismissed."

See also State v Ward (1980) 46 NC App 200, 264 SE2d 737, in which the court
held that where a criminal charge is dismissed
without prejudice on a defendant's motion under the speedy trial statute, the
trial of the defendant on further prosecution by the
state must begin within 120 days (subsequently amended to 90 days) from the date
the order is entered dismissing the charge without
prejudice. The court concluded that 120 days (90 days) was not an unreasonable
length of time within which to reindict and begin
the trial of a criminal charge after a dismissal without prejudice.

s 14. Where prior accusatory instrument was terminated for lack of probable cause

In the following cases in which the prior accusatory instruments were terminated
on the defendant's motion for a redetermination
of probable cause, the courts held that the applicable speedy trial period
commenced to run anew under the subsequent accusatory
instruments.

In State ex rel. Berger v Superior Court of County of Maricopa (1975) 111 Ariz
524, 534 P2d 266, the court, in a special action
brought by the state to determine the speedy trial issue in a pending prosecution,
held that where a defendant's motion for a new
finding of probable cause was granted and a new indictment or information was
returned, the new indictment and new arraignment gave
rise to a new time period under the speedy trial rule. The defendant was
originally indicted on five counts of involuntary
manslaughter, but, following an omnibus hearing, his motion for a new finding of
probable cause was granted. The defendant was
subsequently reindicted before a new grand jury and arraigned on the new
indictment. The defendant's motion to dismiss the new
indictment for lack of a speedy trial was scheduled to be granted on a date
certain unless the state brought a special action to
determine the matter prior to that time.

Affirming a conviction for first-degree murder and related offenses, the court,
in State v Soto (1977) 117 Ariz 345, 572 P2d
1183, citing State ex rel. Berger v Superior Court of County of Maricopa (1975)
111 Ariz 524, 534 P2d 266, supra, held that a
subsequent indictment gave rise to a new speedy trial period where the prior
indictment was quashed on a motion by a codefendant,
joined in by the defendant, for a redetermination of probable cause.
Affirming convictions for robbery, burglary, and first-degree murder, the court,
in State v Edwards (1979) 122 Ariz 206, 594 P2d
72, revd on other grounds 451 US 477, 68 L Ed 2d 378, 101 S Ct 1880, reh den 452
US 973, 69 L Ed 2d 984, 101 S Ct 3128, held that
the defendant was not denied his statutory right to a speedy trial where the time
expended under the first indictment was not
included in the computation of time and the speedy trial limits began anew
following his subsequent reindictment. The original
indictment was dismissed following the defendant's motion for a redetermination of
probable cause. The prosecution appealed the
dismissal, but that appeal was unsuccessful and a new indictment was subsequently
filed. Finding that the period while the appeal
was pending was not to be included in the speedy trial computation and noting that
the speedy trial limits began again after the
reindictment, the court concluded that the speedy trial statute was not violated.

*34692s 15. Where prior accusatory instrument was alleged to be defective or


otherwise invalid

[a] Held to run anew

The prior accusatory instruments having been dismissed on the defendants'


motions based on the instruments being defective or
otherwise invalid, the courts in the following cases held that the applicable
speedy trial periods commenced to run anew under the
subsequent accusatory instruments.

Affirming a conviction for assault with intent to commit rape, the court, in
Latson v State (1958, Sup) 51 Del 377, 146 A2d 597,
held that the statutory speedy trial period began to run again with recommitment
or reindictment after the previous indictments
were dismissed on motions of the defendant. The first indictment was dismissed as
defective and the second indictment was
dismissed on the ground that the defendant had not been afforded a preliminary
hearing. Noting that the long delay in bringing the
defendant to trial was the direct result of his own actions, the court concluded
that the speedy trial period ran from the final
indictment where the record did not reveal any delay caused by the prosecution.

Though defendant filed demand for trial and was not tried within term in which
demand was filed or in next succeeding term, as
required by statute, his motion for discharge and acquittal was properly denied
since statute was applicable only if demand was
entered at court term at which indictment was found, or at next regular term,
defendant's sole demand had followed indictment that
was quashed (in response to his demurrer), and he had not entered demand with
respect to new indictment. Dean v State (1986) 180
Ga App 770, 350 SE2d 489.

Defendant's statutory right to speedy trial, under which defendant has a right
to be tried 270 days after he has been arraigned,
commenced on date of arraignment on Madison County indictments not Rankin County
indictments, where Rankin County indictments were
dismissed and defendant was subsequently indicted in Madison County. West's
A.M.C. s 99-17-1. Moore v. State, 822 So. 2d 1100
(Miss. Ct. App. 2002).
In State v Lyons (1978) 61 Ohio App 2d 228, 15 Ohio Ops 3d 367, 401 NE2d 452,
motion overr, the court, reversing a judgment
dismissing an indictment for complicity to commit murder, held that the speedy
trial period ran from the time of reindictment. The
original indictment was dismissed on the defendant's motion for failure to state
all the elements of the crime and a new indictment
was subsequently filed but was dismissed for want of a speedy trial. Holding that
the dismissal of the original indictment on a
defendant's motion for failure to state all the elements of the crime rendered
such indictment a nullity, the court stated that the
reindictment commenced a totally new period under the speedy trial provisions and
that the time expended under the first indictment
was not to be added to the time period under the new indictment. The court stated
further that the subsequent indictment was for
all purposes a new and original charge.

Reversing an order granting a defendant's motion to dismiss a complaint for


failure to comply with a speedy trial rule, the
court, in Commonwealth v Finfrock (1978) 257 Pa Super 555, 391 A2d 621, held that
the speedy trial period under the rule began to
run from the filing of the second complaint. The case was originally set for
trial 179 days after the filing of the original
complaint. However, the trial was delayed when the defense moved to quash the
indictment for failure to charge a criminal offense
because a drug named in the complaint was not contained in the schedule of
prohibited substances. The prosecution's motion to
amend the indictment to identify the substance was denied and the indictment was
quashed without prejudice. On the same day, a
second complaint was filed charging the defendant with possession with intent to
deliver and delivery of a controlled substance.
The second complaint was thereafter dismissed on the ground that the 180-day
speedy trial period began to run from the filing of
the first complaint and that the period had been exceeded. Concluding that the
speedy trial period did not begin to run until the
second complaint was filed, the court determined that the second complaint was
improperly dismissed where the prosecution still had
over 3 months to bring the defendant to trial at the time the defendant's motion
to dismiss the second complaint was filed.

See Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447, s 21.

*34693 Denying a writ of prohibition sought to prevent the relator from being
tried under a third indictment charging him with
murder, the court, in State ex rel. Farley v Kramer (1969) 153 W Va 159, 169 SE2d
106, cert den 396 US 986, 24 L Ed 2d 451, 90 S Ct
482, held that the dismissal on motions of the relator of two prior indictments
charging him with the same crime rendered those
prior indictments nullities and that the three-term statutory speedy trial period
was calculated from the third indictment. The
prior indictments were dismissed on the ground that they were invalid. The third
indictment was returned after three regular terms
were commenced and ended since the regular term at which the initial indictment
was returned. Noting that the prior indictments
were held to be invalid at the instance of the relator, the court stated that
there was no jurisdiction to try the relator on
either indictment and any trial and conviction would have been a nullity. The
court concluded that the dismissal of the prior
indictments on the motions of the relator provided a new starting point for the
three-term statutory period from the initiation of
the third indictment.

[b] Other results

In the following cases in which the prior accusatory instruments were terminated
on the defendants' motions due to an alleged
defect or invalidity in the instruments, the courts held that the statutory speedy
trial periods did not commence to run anew under
the subsequent accusatory instruments that replaced the terminated ones.

After trial court granted defendants' motion for dismissal of original


information for vagueness, speedy trial time continued to
run, since prosecution never moved to extend speedy trial period. Thus, discharge
of all defendants was proper after speedy trial
time had run. State v Frank (1991, Fla App -4) 573 So 2d 1070.

If the state recharges a defendant with an included offense not mentioned in the
original indictment, then any delay occasioned
by the defendant on the original charge also applies to the new charge, for
purposes of speedy trial. S.H.A. 725 ILCS 5/103-5(a).
People v. Izquierdo-Flores, 266 Ill. Dec. 216, 773 N.E.2d 1286 (App. Ct. 2d Dist.
2002).

The quashal of a prior defective affidavit on motion of the defendant was held,
in State v McCarty (1962) 243 Ind 361, 185 NE2d
732, not to interrupt the running of the three-term speedy trial statute.
Rejecting the prosecution's contention that the
successful motion to quash "wiped out" the original charge for speedy trial
purposes, the court stated that the statute recognized
the fact that the original affidavit or indictment, although quashed, continued to
have the force and effect necessary to hold the
accused by recognizance until such time as a prosecution, based on the same
factual circumstance, could be refiled. The court
concluded that the recognizance by which the defendant was held for more than
three terms of court continued, unabated, during the
entire period. Although the quashal of the original affidavit was occasioned by
the defendant's motion, the court stated that the
delay would not be charged to the defendant since to do so would require the
defendant to accept one of two prejudicial courses of
action--to file the motions to quash and thereby toll the statute or to waive the
defects by not filing such motions.

See People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781, s
24[b].

Reversing a judgment that ordered the discharge of a defendant on the ground


that he was denied a statutory right to a speedy
trial, the court, in Westlake v Cougill (1978) 56 Ohio St 2d 230, 10 Ohio Ops 3d
382, 383 NE2d 599, held that the time between the
nolle prosequi of the first summons and the date of service of the second summons
would not be counted in computing the period of
time elapsed under the speedy trial statute since no charges were pending during
that period. The defendant was originally served
with a summons for violation of a traffic ordinance, but that summons was
dismissed on the defendant's motion on the mistaken
ground that the ordinance was invalid. The defendant, thereafter served with a
second summons charging him with the same
violation, appeared for arraignment, at which time he executed a waiver of his
speedy trial rights. Statutory law required that a
person charged with such a misdemeanor be brought to trial within 45 days after
arrest or service of the summons. The court
concluded that, excluding the time between the nolle prosequi and the service of
the second summons, only 44 days elapsed under the
speedy trial statute at the time the defendant executed his waiver and that the
defendant was therefore not denied his right to a
speedy trial.

*34694s 16. Where prior accusatory instrument charged felony and subsequent
accusatory instrument charged misdemeanor

In the following cases in which a felony accusatory instrument was terminated on


motion of the defendant and was replaced with a
misdemeanor accusatory instrument, the courts held that the applicable speedy
trial period began to run anew under the subsequent
misdemeanor accusatory instrument.

Reversing an order that dismissed a complaint for failure to bring the defendant
to trial within 30 days as required by a prior
speedy trial statute, the court, in People v Nelson (1964, 2d Dist) 228 Cal App 2d
135, 39 Cal Rptr 238, held that the filing of a
misdemeanor complaint that replaced a previously dismissed felony complaint
initiated a new speedy trial period. The defendant was
originally charged with felony manslaughter and felony drunk driving, but that
complaint was dismissed on the defendant's motion.
A second felony complaint was filed but was dismissed on motion of the district
attorney. A misdemeanor complaint charging the
defendant with misdemeanor manslaughter and misdemeanor drunk driving was
thereafter filed, but was dismissed on the defendant's
motion charging violation of the speedy trial statutes. Noting that the dismissal
of the felony complaint was not a bar to filing
another complaint, whether for a felony or for a misdemeanor, the court, adopting
the opinion of the appellate department, held
that the time for trial did not begin until the misdemeanor complaint was filed,
and rejected the defendant's argument that the
speedy trial period on the misdemeanor complaint began to run even before that
prosecution was commenced.

Affirming a conviction for unlawful delivery of barbiturates and stimulants, the


court, in State v Roberts (1973, La) 278 So 2d
56, held that the defendant was not denied his right to a speedy trial where he
was brought to trial within the 1-year speedy trial
period after the filing of the second bill of information. The original bill of
information charging the defendant with a felony
was dismissed on a motion to quash more than a year after its filing. A week
later the new bill of information charging the
defendant with a misdemeanor was filed. The speedy trial article provided that
the state had 1 year from the date of institution
of prosecution in which to try an accused charged with a misdemeanor. Noting that
the statute referred to a misdemeanor charge and
that the crime charged in the original bill of information was a felony, the court
concluded that the time period ran from the
institution of the second bill of information.
s 17. Other particular circumstances

The courts in the following cases, wherein the prior accusatory instruments were
terminated at the request of the defendants
based on circumstances other than those treated in s s 13-16, supra, held that
the applicable speedy trial period was to be
computed from the time of the subsequent accusatory instrument.

In prosecution for felony conspiracy and felony violation of immigration laws,


which felony charges were filed subsequent to
defendant's withdrawal of guilty plea on misdemeanor conspiracy charge, period
between filing of superseding indictment and
arraignment thereon would not be included in speedy trial calculation, nor would
period from filing of motion to dismiss until
decision thereon be included, hence, 70-day speedy trial period calculated from
withdrawal o guilty plea had not yet elapsed;
moreover in interests of justice, conspiracy and substantive felony counts would
be joined and period of time from rendering of
decision on motion to dismiss until trial would be excludable as well from speedy
trial calculations as to felony conspiracy count,
with speedy trial calculation as to substantive felony count remaining unaffected
by original indictment. United States v Ramos
(1984, SD NY) 588 F Supp 1223, later proceeding (SD NY) 605 F Supp 277 and affd
without op (CA2 NY) 779 F2d 37.

See Ringstaff v. State, 451 So. 2d 375 (Ala. Crim. App. 1984), related
reference, 861 F.2d 644 (11th Cir. 1988), reh'g granted,
(Feb. 6, 1989) and on reh'g, 885 F.2d 1542 (11th Cir. 1989), s 11.

In computing the speedy trial period on new charges, continuances obtained by


the defendant in connection with the original
charges are not attributed to him; such delays do not apply to the new charges
because the new charges were not before the court
when the defendant obtained the continuances. S.H.A. 725 ILCS 5/103-5(a). People
v. Izquierdo-Flores, 266 Ill. Dec. 216, 773
N.E.2d 1286 (App. Ct. 2d Dist. 2002).

*34695 Speedy trial act requiring trial within six months of incarceration
would not require reversal of conviction where
violated; defendant's sole remedy would have been release from custody after six
months, which he waived by not requesting.
Dismissal of indictment followed by reinstatement would be viewed as single
prosecution for purpose of such statute, but all speedy
trial rights would be deemed waived by defendant who, following demand for speedy
trial, failed to object to state's failure to
give him one. Fink v State (1984, Ind App) 469 NE2d 466, adhered to, clarified
(Ind App) 471 NE2d 1161.

Reversing a judgment dismissing an information on the ground that the defendant


was denied his statutory and constitutional
rights to a speedy trial, the court, in State v Fink (1975) 217 Kan 671, 538 P2d
1390, held that the defendant's statutory right to
a speedy trial was not violated where the 180-day speedy trial period had not
expired at the time the information was dismissed.
The original complaint charging the defendant with aggravated arson was dismissed
on the defendant's motion for failure to afford
him a timely preliminary hearing. The same charge was later refiled, a
preliminary hearing was held, and an information filed by
the state. The defendant was arraigned under that information, but later moved to
dismiss it for violation of his speedy trial
rights. Stating that the dismissal or nolle prosequi of a criminal charge entered
prior to the arraignment and trial of an accused
was not a bar to a subsequent prosecution for the same offense, the court
concluded that the time elapsed under the original charge
was not to be considered in determining the time elapsed between the subsequent
information and the trial. The court found that
180 days had not elapsed between the earliest possible date of the defendant's
arraignment under the information and the date when
the information was dismissed.

Five-year period between mistrial on defendant's murder charge and entry of


nolle prosequi of indictment, which was followed more
than twenty years later by reindictment and conviction, did not violate
defendant's right to speedy trial, though length of such
period was presumptively prejudicial to defendant; defendant never asserted his
speedy trial rights, defendant acquiesced in delay
caused by state agency's assistance to his defense without prosecution's
knowledge, and defense was not prejudiced, as all material
evidence from prior proceedings was preserved. U.S.C.A. Const. Amend. 6. De La
Beckwith v. State, 707 So. 2d 547 (Miss. 1997),
reh'g denied, (Mar. 26, 1998) and cert. denied, 119 S. Ct. 187 (U.S. 1998).

Reversing an order dismissing an indictment on speedy trial grounds, the court,


in Commonwealth v Bell (1976) 245 Pa Super 164,
369 A2d 345, affd 481 Pa 229, 392 A2d 691, held that the speedy trial statute
commenced to run from the time of the entry of an
order certifying the case to the criminal division for adult proceedings where the
defendant was originally charged in a
delinquency petition. Subsequent to the filing of the delinquency petition, the
case was transferred at the defendant's request to
the criminal court, the delinquency petition apparently being thereby abandoned.
The defendant was subsequently indicted, but the
indictment was dismissed on the ground that he had not been brought to trial
within 180 days from the filing of the original
delinquency petition. Noting that juvenile proceedings were excluded from the
coverage of the state's criminal procedure rules,
the court concluded that the statutory speedy trial period did not apply until the
proceedings came within the powers of the
criminal courts, which event took place with the entry of the order of transfer.

And the rule that when a juvenile is transferred to the criminal division, the
speedy trial rule begins to run from the date of
the transfer rather than from the time the petition in juvenile delinquency is
filed, was also recognized in Commonwealth v Gunter
(1982) 299 Pa Super 432, 445 A2d 831; Commonwealth v Sadler (1982) 301 Pa Super
228, 447 A2d 625, habeas corpus proceeding (CA3 Pa)
748 F2d 820; and Commonwealth v Satchell (1982) 306 Pa Super 364, 452 A2d 768.

See Durbin v State (1986, Tex App El Paso) 716 SW2d 131, s 11.
*34696 Juvenile defendant's speedy trial rights were not violated, despite
his claim that, because circuit court lacked
jurisdiction to try him on original indictments due to its failure to conduct
review of transfer order before those indictments
were returned, his waivers of his speedy trial rights before his release on bond,
which occurred after review was conducted and he
was indicted for second time, were as void as to original indictments; it was
defendant's speedy trial rights that he waived in his
motions for continuance of trial, not any right having to do with validity of
indictments returned against him in circuit court.
U.S.C.A. Const. Amend. 6; Code 1950, s 19.2-243. Jackson v. Com., 255 Va. 625,
499 S.E.2d 538 (1998), cert. denied, 1999 WL 8039
(U.S. 1999).

V. Termination of prior accusatory instrument attributable to other than


prosecution or defense

s 18. Generally

In the following cases wherein the prior accusatory instruments were terminated
at the request of neither the prosecution nor the
defense, the courts held that the applicable speedy trial periods commenced to run
anew under the subsequent accusatory instruments.

However, in Koch v State (1982, Alaska App) 653 P2d 664, the court, reversing a
conviction for negligent homicide, held that the
speedy trial period ran from the date of the original complaint charging the
defendant with "following too close." The charges
arose out of the death of a motorcyclist who was struck from behind by the
defendant's automobile. The original complaint charging
the defendant with the traffic infraction was terminated when the defendant paid
the required fine. Although the district
attorney's office originally concluded that the facts would not support charging
the defendant with negligent homicide, subsequent
events led to the submission of the case to a coroner's jury and a resultant
complaint for negligent homicide. The court held that
the charge of negligent homicide was a subsequent charge based on the same conduct
as the original traffic infraction and that the
120-day speedy trial period for the negligent homicide charge started when the
defendant was charged with the previous infraction.
The court noted that the homicide complaint was not based on any new evidence and
that the state failed to show any good cause for
the delay in bringing the coroner's inquest, which might have tolled the speedy
trial period.

Affirming a conviction for kidnapping, the court, in State v Rose (1978) 121
Ariz 131, 589 P2d 5, held that the speedy trial
limits began anew after the dismissal of a case without prejudice where there was
no showing of bad faith on the part of the
prosecution and no showing of prejudice to the accused. The original charges
against the defendant were dismissed without
prejudice and later refiled. The court stated that the record revealed no bad
faith on the part of the prosecution nor prejudice
to the defendant that would mandate measuring the speedy trial time from the
defendant's initial arrest. The court added that a
dismissal without prejudice to refile the charges would have little meaning if it
were not implied that the time limits of the
speedy trial rule would begin anew on refiling.

Denying a petition to restrain further proceedings in the prosecution of the


defendant for an alleged sale of heroin, the court,
in Bellizzi v Superior Court of Stanislaus County (1974) 12 Cal 3d 33, 115 Cal
Rptr 52, 524 P2d 148, cert den 420 US 1003, 43 L Ed
2d 761, 95 S Ct 1445, held that the 60-day statutory period within which the
defendant must be brought to trial began to run anew
after the filing of the subsequent complaint. The court rejected the petitioner's
contention that the state deprived him of his
right to a speedy trial by its decision to refile the charge rather than to appeal
the dismissal order relating to the original
indictment. The petitioner claimed that the delay in bringing him to trial
resulted in the unavailability of a defense witness who
disappeared after he learned that the original indictment against the petitioner
had been dismissed. While acknowledging that the
prosecution's statutory right to refile cannot infringe on the petitioner's
constitutional right to a speedy trial, the court
concluded that to hold that the petitioner was denied a speedy trial as a result
of prosecutorial delay in this case would require
a finding that the prejudicial effect of the delay outweighed any justification
for it. However, noting that the petitioner was in
contact with his witness and yet failed to take steps to assure that the witness
would remain available to testify, the court
concluded that if the petitioner's negligence was a significant factor in causing
the alleged prejudice, he should not be entitled
to assert such prejudice as a ground for speedy trial relief.

*34697 Criminal rule which requires the State to bring a defendant to trial
within one year after the charge is filed or the
defendant is arrested did not bar defendant's retrial for battery; the State
originally brought defendant to trial within the one
year limitations period, the trial judge took the matter under advisement for 169
days prior to the State seeking the appointment
of a special judge to expedite the matter, and therefore the State was not
responsible for the unreasonable delay in the resolution
of defendant's first trial. Rules Crim. Proc., Rule 4(C). State v. Erlewein, 755
N.E.2d 700 (Ind. Ct. App. 2001).

In People v Ferrara (1979) 102 Misc 2d 253, 423 NYS2d 370, the court, granting
the defendant's motion to dismiss an accusatory
instrument, held that the speedy trial period commenced to run from the filing of
a prosecutor's information and not from the
filing of a prior felony complaint where the applicable speedy trial statute
provided that the speedy trial period be computed from
the filing of the new accusatory instrument in cases in which a felony complaint
was replaced with or converted to, inter alia, a
prosecutor's information. The defendant was originally charged in a felony
complaint with second-degree burglary and second-degree
assault. Following presentment of the case to a grand jury, the prosecution was
directed to file a prosecutor's information
charging the defendant with third-degree assault and second-degree criminal
trespass. Due to a "backlog" in the prosecutor's
office, the prosecutor's information was filed approximately 2 months later. The
applicable speedy trial statute stated that the
speedy trial period was calculated from the filing of a misdemeanor accusatory
instrument that replaced a prior felony accusatory
instrument and that the period of time from the misdemeanor accusatory instrument
to trial must be 90 days, provided that the total
period of time already elapsed from the filing of the felony complaint to the
filing of the new accusatory instrument did not
exceed 6 months. If the period of time did exceed 6 months, the period applicable
to the charges in the felony complaint remained
applicable and continued as if the new misdemeanor accusatory instrument had not
been filed.

Affirming a conviction for conspiracy to commit burglary, the court, in


Commonwealth v Braithwaite (1978) 253 Pa Super 447, 385
A2d 423, held that the statutory speedy trial period ran from the filing date of
the fourth and final complaint filed against the
defendant where the initial complaint was properly dismissed by a magistrate and
the record failed to show that either the
defendant or his attorney objected to that dismissal. Two additional complaints
charging the same crime were filed against the
defendant following the dismissal of the original complaint, but these complaints
were subsequently withdrawn by the police officer
who signed the affidavits. The court noted that the prompt trial period would
attach from the date of the subsequent complaint
only if the initial complaint were properly dismissed by the magistrate and there
was no evidence of an improper prosecutorial
design to circumvent the mandate of the speedy trial rule. In the case at bar,
the court concluded that, since neither the
defendant nor his attorney objected to the dismissal, it must be assumed that the
magistrate did not abuse his discretion in
dismissing the initial complaint.

s 19. Where prior accusatory instrument was alleged to be defective or otherwise


invalid

In the following cases in which defective or otherwise invalid accusatory


instruments were terminated but such termination was
not attributable to the prosecution or the defense, the courts held that the
applicable speedy trial periods began to run anew
under the subsequent accusatory instruments.

Denying a petition to dismiss the first count of an indictment that replaced a


previous indictment that contained an erroneous
date of the crime charged, the court, in Rowse v District Court of County of
Alamosa (1972) 180 Colo 44, 502 P2d 422, held that the
1-year statutory speedy trial period as applied to the first count of the
subsequent indictment ran from the time of the filing of
that indictment where the first count of the original indictment specified as the
date of the crime a date after the indictment
itself was issued. On discovering that the first count of the two-count
indictment contained the incorrect date, the grand jury
reindicted the defendant, the first count of the new indictment specifying the
correct date and the second count repeating the
second count of the original indictment. The trial court subsequently dismissed
the original indictment on its own motion. On
appeal, the court held that the accused did not become legally charged or subject
to the jurisdiction of the court as to the first
count of the subsequent indictment until he was reindicted and charged in the
subsequent action. The court noted that a crime
cannot be charged in the future and an indictment or information purporting to do
so charges nothing and is without efficacy.
However, the court held that it was error to deny the motion to dismiss the second
count, which was identical to the second count
of the first indictment, where the defendant was charged with the offense in that
count for more than 1 year without being brought
to trial. The court impliedly held that the statutory speedy trial period ran
continuously from the initial indictment on the
second count and was not interrupted by the dismissal and refiling of the
identical charge.

*34698 Affirming a conviction for burglary, the court, in State v Bolin


(1983, Mo) 643 SW2d 806, held that the statutory
speedy trial period ran from the time of a subsequent indictment where the
original indictment was invalid due to an irregularity
in the indictment procedure. The state originally filed a complaint, then
obtained an indictment, filed a second complaint,
secured a second indictment, and ultimately tried the defendant on an information
filed in lieu of the second indictment. After
the filing of the first indictment, a preliminary writ of prohibition staying the
proceedings against the defendant and 36 other
defendants indicted by the same grand jury was issued on the ground that the
indictments were improperly returned. Rejecting the
defendant's claim of a denial of his statutory right to a speedy trial, the court
concluded that the entire proceeding involving
the first indictment was a nullity and did not result in the running of the speedy
trial statute. The court likewise held that the
speedy trial statute did not apply to outstanding complaints, but only to
informations or indictments. The court concluded that
the defendant was not denied his right to a speedy trial where the trial was begun
only 9 days after the second indictment was
returned.

Affirming a conviction for fornication and bastardy, the court, in Commonwealth


v Mumich (1976) 239 Pa Super 209, 361 A2d 359,
held that the defendant had not been denied his right to a speedy trial where the
trial had been held within 270 days from the
filing of the second complaint charging him with the crimes. The first complaint
was dismissed by a magistrate on the ground that
the signature of the prosecutrix did not appear on the defendant's copy. Within a
month of the dismissal, a second complaint was
filed by the prosecutrix. The defendant's motion to dismiss the second complaint
on the ground that he had not been tried within
270 days of the filing of the first complaint was denied and trial was held within
the 270-day limit from the date of the second
complaint. Without determining whether the defect in the first complaint was
substantial enough to warrant dismissal, the court
concluded that the failure of the defendant or his attorney to object to the
dismissal of the first complaint constituted an
acquiescence in this procedure thereby depriving the defendant of the argument on
appeal that the dismissal was improper. In
addition, the court stated that the record did not reflect that the dismissal was
an attempt by the district attorney to evade the
speedy trial rule.

Grand jury's action in returning first indictment as "not a true bill" in


November, following certification of charge to it in
September, operated to discharge defendant on charge in question, and, since he
was brought to trial in April, within two months of
second indictment in February, there was compliance with five-month statutory
speedy trial period, notwithstanding fact that trial
was 6 1/2 months after finding of probable cause on first charge. Presley v
Commonwealth (1986) 2 Va App 348, 344 SE2d 195.
However, in State v Matlock (1980) 27 Wash App 152, 616 P2d 684, the court held
that the speedy trial period was tolled between
the dismissal of the original charges and the defendant's arraignment on refiled
charges. The original information charging the
defendant with manufacturing and possessing a controlled substance was dismissed
by the court without prejudice on the ground that
the information was not verified. The defendant was subsequently arraigned under
a verified information charging the identical
crimes. While noting that the prior speedy trial rule excluded the time between
the dismissal and the refiling of the same
charges, the court concluded that the amended rule, which excluded the time
between dismissal and arraignment on the refiled
charges, was applicable in this case. Therefore, the court held that the time
expended under the original information and the time
expended under the subsequent information not having exceeded the speedy trial
period, the defendant received a timely trial.
However, the conviction was reversed on the ground that the affidavit in support
of the search warrant was insufficient and the
evidence seized should have been suppressed.

s 20. Where prosecution witness was alleged to be unavailable

The courts in the following cases, wherein the prior accusatory instruments were
terminated when prosecution witnesses became
unavailable, held that the applicable speedy trial period began anew under the
subsequent accusatory instruments.

Affirming a conviction for robbery, the court, in State v Taylor (1976) 27 Ariz
App 330, 554 P2d 926, held that the defendant was
not denied his right to a speedy trial under state rule where the time for
bringing the defendant to trial began from the filing of
the second complaint. The first complaint against the defendant was dismissed by
a justice of the peace when the victim could not
be located and the prosecution could not proceed without him. The charges were
subsequently filed again and the defendant was
tried and convicted under a second complaint. While noting that the state rule
provides that the prosecution is not entitled to a
dismissal where the purpose of the dismissal is to avoid the provisions of the
speedy trial rule, the court concluded on these
facts that the filing of the second complaint triggered the time of the speedy
trial rule to run anew and that there was no
violation of the rule.

*34699 Likewise, in People v Toney (1978) 58 Ill App 3d 364, 15 Ill Dec 912,
374 NE2d 695, the court, reversing an order
discharging the defendant on speedy trial grounds, held that the statutory speedy
trial period commenced to run anew on the
defendant's reindictment where the original charges were dismissed by the court on
a finding of no probable cause. The original
charges of murder and aggravated battery were dismissed at the conclusion of a
preliminary hearing when the state was unable,
despite diligent efforts to locate eyewitnesses to the crimes, to present
testimony from those eyewitnesses. Distinguishing the
situation where a charge is stricken with leave to reinstate, in which case the
same charge subsequently may be reinstated, the
court pointed out that after a discharge for want of probable cause, the
proceedings may begin again only after the prosecution
secures additional evidence and files new charges against the defendant. The
court added that a dismissal for lack of probable
cause is a judicial determination in favor of the defendant rather than a
voluntary act on the part of the prosecution and that the
prosecution has little opportunity to manipulate the proceedings or purposely to
evade the operation of the speedy trial term.

Affirming a conviction for murder, the court, in People v Garcia (1978) 65 Ill
App 3d 472, 22 Ill Dec 51, 382 NE2d 371, held that
the statutory speedy trial period began to run anew on the defendant's arrest
pursuant to the subsequent indictment where the
original charges were dismissed and the defendant was discharged on a finding of
no probable cause and where there was no proof
that the prosecution sought to evade the speedy trial rule. The dismissal on no
probable cause resulted from the inability of the
prosecution to present testimony at the preliminary hearing from the only
eyewitness to the crime. The eyewitness had left the
state after the murder out of fear of the defendant's friends if he cooperated
with the authorities. Once the eyewitness returned,
the prosecution was then able to obtain the subsequent indictment. The court
stated that absent a showing that the prosecution
orchestrated the finding of no probable cause as an evasionary tactic, there was
no reason to ignore the speedy trial statute's
requirement that the period ran only when the charge was pending against the
accused. The court pointed out that in the case at
bar the subsequent indictment was the result of eyewitness testimony that was
unavailable to the state at the preliminary hearing.

Reversing an order dismissing an indictment on the ground of speedy trial


violations, the court, in State v Koberlein (1983) 309
NC 601, 308 SE2d 442, held that the running of the speedy trial statute commenced
with the defendant's arrest under the subsequent
indictment where the initial charges were dismissed due to the failure of the
prosecuting witness to appear at the original
probable cause hearing. Recognizing the rule under the speedy trial statute that
when a charge is dismissed on a finding of no
probable cause, the computation of time for the purpose of applying the Speedy
Trial Act commences with the last of the listed
items ("arrested, served with criminal process, waived an indictment, or was
indicted"), the court concluded that there was no
practical distinction between a dismissal based on the state's failure to process
with a probable cause hearing due to the
unavailability of a prosecuting witness and a dismissal based on a finding of no
probable cause. The court stated that under the
facts of the case the time within which the state was required to bring the
defendant to trial ran from his arrest under the new
charges and not the original charges.

However, in Commonwealth v Leatherbury (1982) 499 Pa 450, 453 A2d 957, on remand
322 Pa Super 222, 469 A2d 263, the court,
vacating an order discharging a defendant for failure to provide him with a speedy
trial, held that the 180-day speedy trial period
was tolled between the time of the dismissal of the first complaint and the filing
of the second complaint where the dismissal was
not obtained at the instigation of the prosecution and there was no attempt to
evade the speedy trial limits. Pursuant to a local
court rule, the initial complaint was dismissed when the complaining witness
failed for the third time to appear at a preliminary
hearing. Approximately 4 months later a second complaint was filed charging the
defendant with the same crimes. The court stated
that the speedy trial rule was tolled between the dismissal of a prior complaint
and the filing of a subsequent complaint except
where the state attempted to evade the requirements of the speedy trial rule
through the use of the nolle prosequi procedure.

*34700 See also Commonwealth v Lowe (1978) 255 Pa Super 78, 386 A2d 144,
where an opinion in support of affirmance of a
conviction by an equally divided court held that the speedy trial period ran from
the filing of the second complaint where the
first complaint was properly dismissed and the record reflected that the dismissal
was due to the inability to produce witnesses
for the state and that there was no attempt by the prosecution to avoid the
mandate of the speedy trial rule.

Affirming a conviction for perjury, the court, in Commonwealth v Weitkamp (1978)


255 Pa Super 305, 386 A2d 1014, held that the
defendant was not denied his right to a speedy trial where he had been tried
within the statutory period after the filing of the
second complaint. The first complaint charging the defendant with perjury was
dismissed at a preliminary hearing when three of the
state's witnesses asserted their Fifth Amendment privilege and refused to answer
questions regarding their knowledge of an
involvement in the criminal acts. Approximately 9 months later a new complaint
charging perjury on the same facts was lodged
against the defendant. Rejecting the defendant's contention that the 275-day
statutory period should be computed from the filing
of the initial complaint, the court concluded that the statutory period ran from
the filing of the second complaint where there was
no objection by the defense to the dismissal of the first complaint and, further,
the record did not reflect any intent by the
state to deprive the defendant of his right to a speedy trial or otherwise to
secure advantage or prejudice the defendant's defense
by trying him at a later time. The court determined that the first complaint was
properly dismissed solely because the witnesses
for the state had declined to testify.

s 21. Where prior accusatory instrument was terminated for lack of probable cause
or failure to state prima facie case

In the following cases wherein the prior accusatory instruments were terminated
by the court based on a lack of probable cause or
a failure to establish a prima facie case, the courts held that the applicable
speedy trial period commenced to run anew from the
time of the subsequent accusatory instrument.

Reversing a judgment granting a petition for discharge on speedy trial grounds,


the court, in People v Gimza (1977) 56 Ill App 3d
477, 14 Ill Dec 82, 371 NE2d 1135, held that the 160-day speedy trial period for
defendants on bail began to run anew on an
indictment for murder that was returned after the original manslaughter charge was
dismissed by the court at a preliminary hearing
for lack of probable cause. The indictment was returned after the grand jury
heard evidence based on the same events, including a
witness who had not appeared at the preliminary hearing. Recognizing that the
statutory time period continues to run if the state
nolle prosses a case or has the charge stricken with leave to reinstate, the court
concluded that a discharge for want of probable
cause with a subsequent indictment was distinguishable from those situations in
that the probable cause discharge was not an act
within the state's control. The court pointed out that the indictment was based
on additional evidence and that it charged the
defendant with a more serious crime than the original charge.

And the rule that the speedy trial period begins to run anew under the
subsequent accusatory instrument where the prior
accusatory instrument was dismissed by the court for lack of probable cause was
also recognized in People v Toney (1978) 58 Ill App
3d 364, 15 Ill Dec 912, 374 NE2d 695; and People v Garcia (1978) 65 Ill App 3d
472, 22 Ill Dec 51, 382 NE2d 371.

Following dismissal of indictment containing felony charge against one defendant


and misdemeanor charges against other defendant
(on grounds that evidence was insufficient with respect to felony and that
prosecution had inadequately instructed grand jury with
respect to misdemeanors) and subsequent filing of indictment containing only
misdemeanor charges, six-month readiness period
applicable to filing of felony charges continued to govern case rather than 90-day
period applicable to misdemeanor charges, and
six-month period ran from date of original indictment. People v Day (1988) 139
Misc 2d 222, 526 NYS2d 736.

Where first indictment was dismissed for lack of probable cause after
prosecution complied with statutory speedy trial
requirement, defendant's speedy trial right was not violated by filing of amended
indictment, since prosecution was ready for trial
within statutory period. People v Skinner (1995, NY App Div 3rd Dept) 621 NYS2d
733.

*34701 Affirming a conviction for felonious possession of stolen property,


the court, in State v Boltinhouse (1980) 49 NC App
665, 272 SE2d 148, held that the speedy trial period commenced with the last of
the statute's listed items ("arrested, served with
criminal process, waived an indictment, or was indicted") relating to the new
charge rather than the original charge where the
original charge was dismissed on a finding of no probable cause. The defendant
was originally arrested pursuant to a warrant
charging him with felonious possession of stolen property, but a finding of no
probable cause was subsequently entered on that
charge. He was thereafter indicted for felonious possession of the same property.
The speedy trial statute provided that where a
charge is dismissed and the defendant is later charged with the same offense or an
offense based on the same criminal act, the
trial must commence within 120 days from the date of the last of the listed events
relating to the original charge. One of the two
exceptions was a dismissal based on a finding of no probable cause and the court
concluded that the speedy trial period would
commence to run under a new charge where the original charge was dismissed on a
finding of no probable cause. The court determined
in this case that the speedy trial period began to run from the date of the
defendant's indictment on the new charge rather than
from the date of his arrest on the original charge.

The rule that the speedy trial period begins to run anew under the subsequent
accusatory instrument where the prior accusatory
instrument was dismissed by the court for failure of the prosecution to establish
a prima facie case was also upheld in
Commonwealth v Cartagena (1978) 482 Pa 6, 393 A2d 350; Commonwealth v Horner
(1982) 497 Pa 565, 442 A2d 682; and Commonwealth v
Poindexter (1982) 301 Pa Super 454, 447 A2d 1387.

Reversing an order dismissing murder and related charges on the ground that the
defendant was denied his right to a speedy trial,
the court, in Commonwealth v Genovese (1981) 493 Pa 65, 425 A2d 367, held that the
180-day speedy trial period commenced to run
from the filing of the second complaint. The original complaint charged the
defendant with murder, voluntary manslaughter, and
other offenses arising out of the death of his girlfriend's infant daughter.
Approximately 5 months later the complaint was
dismissed for lack of a prima facie case. About 3 weeks later a second complaint,
containing charges identical to those previously
dismissed, was filed and the defendant was rearrested. The defendant's subsequent
motion to dismiss all charges with prejudice on
the ground that more than 180 days had passed since the filing of the original
complaint was granted. The court stated that 50
long as there had been no misconduct on the part of the state in an effort to
evade the fundamental speedy trial rights of a
defendant, the spirit and language of the speedy trial rule mandated that the 180-
day time period be calculated from the date of
the filing of the second complaint, the first complaint having become a nullity
for all purposes once it was dismissed.

In prosecution for driving under the influence, in which first complaint was
properly dismissed due state's failure to present
prima facie case in that to charging officer failed to appear at preliminary
hearing, officer's actions in failing to appear and in
filing subsequent complaint over two months later did not constitute attempt to
circumvent speedy-trial rule, hence lower court
properly computed 180 day period under rule from date of filing of second
complaint. Commonwealth v Knox (1984) 330 Pa Super 136,
479 A2d 1.

In prosecution in which three complaints were filed against defendant, statutory


speedy trial period began to run from filing
date of third complaint where first complaint was "properly dismissed," within
meaning of speedy trial rule for failure to make out
prima facie case, where second complaint was dismissed upon motion by defendant
for late filing of complaint, and where there was
no indication of Commonwealth attempt to circumvent rule. Commonwealth v Gehman
(1989) 381 Pa Super 244, 553 A2d 447.

In considering speedy trial motion of defendant who was indicted for assault and
battery in October 1979, was arrested for murder
of same victim several weeks later, had murder charge dismissed at preliminary
hearing in January 1980 due to lack of probable
cause, was arrested again for murder in September 1984 and subsequently indicted
for it, and was scheduled for trial in June of
1985, the only time period to be included were three months between initial arrest
and dismissal of charges and nine months between
second arrest and defendant's motion to quash; time during which charges were
dismissed and defendant was free of all restrictions
on his liberty were to be excluded. Hunter v Patrick Constr. Co. (1986) 289 SC
46, 344 SE2d 613.

*34702s 22. Where prior accusatory instrument was terminated for failure to
prosecute

The courts in the following cases, wherein the prior accusatory instrument was
terminated by the court due to lack of
prosecution, held that the applicable speedy trial period continued to run and was
not interrupted by the termination.

Although a different result was reached in earlier cases, [FN15] the court in a
later New York case held that the speedy trial
period continued to run from the filing of the initial accusatory instrument where
that instrument was dismissed for failure of the
state to prosecute. Thus, reinstating the trial judge's orders granting motions
by the defendants to dismiss indictments on the
grounds of speedy trial violations, the court, in People v Osgood (1980) 52 NY2d
37, 436 NYS2d 213, 417 NE2d 507, on remand (2d
Dept) 80 App Div 2d 620, 436 NYS2d 61 and on remand (2d Dept) 80 App Div 2d 623,
436 NYS2d 65, held that the speedy trial period
was to be computed from the time of the filing of the original felony complaint
rather than from the subsequent indictment for the
same charges where the original complaint was dismissed on the ground of the
inexcusable failure of the state to prosecute. Each
defendant in these cases, arraigned on a felony complaint that was subsequently
dismissed for failure to prosecute, was later
indicted for the same offense as that charged in the complaint. More than 6
months having elapsed since the filing of the
complaint, each defendant moved to dismiss the subsequent indictment for failure
to bring him to trial within the speedy trial
period. Rejecting the state's proposition that the indictments were not "directly
derived" from the complaints, the court stated
that the cases could be directly traced to the complaints that originated the
prosecutions on the same felonies charged in the
indictments. [FN16]

In State v Justice (1976) 49 Ohio App 2d 46, 3 Ohio Ops 3d 109, 358 NE2d 1382,
motion overr, the court, reversing a conviction
for possession of a hallucinogen, held that the time for bringing the defendant to
trial ran from the time of arrest under the
original complaint where that complaint was dismissed for want of prosecution and
another complaint containing the identical charge
was subsequently filed. The court concluded that the defendant was denied his
right to a speedy trial where he was tried more than
90 days after his arrest on the original complaint.

And see Commonwealth v Powell (1978) 257 Pa Super 522, 390 A2d 1360, in which an
equally divided court affirmed a judgment and an
opinion in support of affirmance, concurred in by three of the six judges, and
held that the speedy trial period began to run from
the date of the filing of the second complaint where the first complaint had been
dismissed for lack of prosecution.

However, in State v Wieman (1978) 19 Wash App 641, 577 P2d 154, the court,
affirming a conviction for passing a forged
prescription, held that the period between the dismissal of the original charge
and the refiling of the same charge was excluded by
the speedy trial rule in computing the period elapsed for speedy trial purposes.
The court dismissed the original charge due to
lack of prosecution by the state and the prosecution subsequently filed an
information based on the same alleged offense. The
court stated that there was no violation of the 90-day speedy trial rule unless
the time between the dismissal and the refiling
were included in the computation of the statutory period.

s 23. Where prior accusatory instrument was brought in different court

In the following cases in which the prior accusatory instruments were terminated
other than by the prosecution or the defense and
subsequent accusatory instruments were brought in different courts, the courts
held that the applicable speedy trial period was
computed from the appropriate time under the subsequent accusatory instruments.

In prosecution for drug offenses and conspiracy, delay between original


California indictment and eventual trial in Arizona did
not violate Speedy Trial Act, even if reindictment in Arizona after change of
venue only tolled time period rather than restarting
period, where excluding days between motion for change of venue and first
appearance in Arizona left 64 non-excludable days;
dismissal of original indictment was not clearly attributable to defense or
prosecution since motion for change of venue did not
require reindictment, and second indictment was not to clarify or remedy defects
in first charge. United States v Duque (1995, CA9
Ariz) 62 F3d 1146, 95 CDOS 6224, 95 Daily Journal DAR 10608.

*34703 The speedy trial statute was held, in Pearson v State (1982) 53 Md App
217, 452 A2d 1252, to apply only to a subsequent
indictment in the circuit court and not to a previously dismissed warrant in the
district court. The original warrant was
dismissed when the prosecution elected to take the case before a grand jury, which
subsequently returned an indictment against the
defendant. Stating that the speedy trial rule applied only to charges brought in
the circuit court, the court concluded that the
speedy trial period ran from the time the defendant's counsel entered his
appearance in the circuit court and that the defendant
was therefore brought to trial within the 180-day requirement where the time
between counsel's appearance and the trial was only
167 days.

Affirming a conviction for delivering a bank check with intent to defraud, the
court, in State v Costello (1977) 199 Neb 43, 256
NW2d 97, held that the 6-month statutory speedy trial period commenced from the
filing of the information in the district court
rather than from the filing of a prior complaint in the county court. Subsequent
to the filing of the original complaint, the
defendant was arrested outside the jurisdiction and apparently arraigned under the
complaint. Thereafter an information similar to
the complaint was filed in the district court. Noting that the speedy trial
statute provided that the 6-month period commenced to
run on the date the indictment was returned or the information filed, the court
concluded that the defendant's speedy trial rights
were not violated where he was brought to trial less then 6 months after the
filing of the information.

s 24. Other particular circumstances

[a] Held to run anew

In the following cases, wherein the prior accusatory instruments were terminated
by neither the prosecution nor the defense and
factors existed other than those treated in s s 19-23, supra, the courts held
that the applicable speedy trial period began to run
anew from the time of the subsequent accusatory instrument.

Superseding indictment returned by grand jury, which added to original


indictment of five counts based on same course of conduct,
restarted 30-day period within which government could not bring defendants to
trial under Speedy Trial Act, where addition of
racketeering count might have significantly altered defense's tactics and
strategies at trial and may have necessitated additional
legal research for which defendants deserved full period of preparation allowed.
United States v Feldman (1985, CA7 Ill) 761 F2d
380, 18 Fed Rules Evid Serv 1, 84 ALR Fed 649 (disapproved United States v Rojas-
Contreras, 474 US 231, 88 L Ed 2d 537, 106 S Ct
555, on remand, without op (CA9 Cal) 786 F2d 1176) as stated in United States v
Watkins (CA11 Fla) 811 F2d 1408, cert den (US) 96 L
Ed 2d 381, 107 S Ct 2490 and later app (CA7 Ill) 825 F2d 124.

Effect of court's sua sponte dismissal of information, following its rejection


of plea agreement, was to restart rather than toll
speedy trial clock. United States v Page (1988, CA8 Minn) 854 F2d 293.

Court of Appeals' remand of orders of dismissal, which returned jurisdiction


over defendants' cases to district court and caused
reinstatement of driving while intoxicated (DWI) charges, restarted speedy trial
calculation at "Day 1." Rules Crim. Proc., Rule
45. Garcia v. State, 947 P.2d 1363 (Alaska Ct. App. 1997).

Affirming a conviction for attempted burglary in the first degree, the court, in
State v McDonald (1977) 117 Ariz 159, 571 P2d
656, held that the time period under the speedy trial rule was properly calculated
from the second complaint charging the defendant
with attempted burglary where the initial complaint was dismissed by the court
without prejudice for failure to hold another
preliminary hearing to determine probable cause. The original complaint was
remanded to the justice court for a redetermination of
probable cause, but that hearing has never conducted and the dismissal was
entered. A new complaint charging the same crime was
thereafter issued. The court stated that when a motion for a new finding of
probable cause is granted and a new indictment or
information is thereafter filed, new time periods under the speedy trial rule
result.

Under statute requiring that any retrial of charge reversed on appeal following
conviction occur within six months of reversal,
prosecution's announcement of readiness to conduct retrial was insufficient to
toll six-month period where they did not in fact
take steps to commence trial despite availability of defendant in custody on other
charges. Reindictment would thus be dismissed.
People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781.

*34704 In State v Sauers (1977) 52 Ohio App 2d 113, 6 Ohio Ops 3d 87, 368
NE2d 334, the court held that the speedy trial
period commenced from the service of the summons on a misdemeanor indictment
charging the defendant with criminal trespass where
the prior felony charge was dismissed by the grand jury that returned the
misdemeanor indictment. The court held that the
misdemeanor charge brought into action the statutory time limitations relating to
misdemeanors and that the time limitations of the
statute relating to felonies were no longer applicable once the felony charge was
dismissed. [FN17]
Defendant's speedy trial rights were not violated where prosecution timely
announced trial readiness on initial indictment, where
subsequent indictment did not change original charges except to allege prior
convictions, and where principal reason for delay was
not subsequent indictment, but rather need for competency hearing. Armstead v
State (1984, Tex App El Paso) 677 SW2d 266, review
ref, en banc (Tex Crim) 692 SW2d 99.

In Dulin v Commonwealth (1895) 91 Va 718, 20 SE 821, it appeared that in the


November 1893 term of county court defendant was
indicted for murder, and at the same term of that court, upon his own demand,
remanded to the circuit court for trial and that the
county court never had any further jurisdiction over that indictment, and there
was, therefore, but one term of the county court at
which defendant could have been tried upon the first indictment, namely, the
November term, 1893. It was contended by defendant
that if a statutory amendment of February 12, 1894, deprived the circuit court of
jurisdiction to try the indictment pending in
that court, then the amendment which deprived that court of such jurisdiction ex
proprio vigore forever discharged the accused from
further prosecution for said offense, or else remanded said indictment to the
county court for trial on the day that the said
jurisdiction was taken from the circuit court, and that since there had been four
terms of the county court from the time said
jurisdiction was taken away from the circuit court, and no trial of said
indictment, he was entitled to be forever discharged from
prosecution for said offense. In answer to this contention, the court pointed out
that the taking away of the jurisdiction of the
circuit court did not operate to transfer the indictment from that court to the
county court, inasmuch as to remand such a case
from the circuit court to the county court would require an act of the
legislature. So the indictment pending in the circuit court
was therefore never remanded to the county court by operation of law or otherwise,
and the time between the amendment, and the time
the accused was again indicted, in June, 1894, could not be considered in
determining whether there was such delay in the county
court in the trial of the accused as entitled him to be forever discharged from
further prosecution for the offense.

[b] Other results

The courts in the following cases, wherein the prior accusatory instruments were
dismissed other than by the prosecution or the
defense and factors were present other than those treated in s s 19-23, supra,
held that the applicable speedy trial period was
calculated other than by the subsequent accusatory instrument.

Affirming a conviction for assault and battery, the court, in People v O'Malley
(1982) 108 Ill App 3d 823, 64 Ill Dec 333, 439
NE2d 998, held that the running of the speedy trial statute was tolled between the
dismissal of the initial indictment and the
filing of the subsequent indictment charging the same crimes. The original
indictment was dismissed by the circuit court on the
ground of prosecutorial misconduct before the grand jury. The state filed a
notice of appeal from the dismissal, but the appeal
was never perfected and a new indictment was subsequently returned charging the
defendant with the same crimes as those in the
original indictment. Noting that there were no charges pending against the
defendant after the dismissal of the first indictment
and that the defendant was not then in custody or under any restraint, the court
concluded that the time between the dismissal and
the reindictment was not to be included in the speedy trial period since that
period only runs when charges are pending against a
defendant. The court added that it was apparent that the state did not
deliberately procure the dismissal of the first indictment
to evade the speedy trial requirement.

Capital murder defendant's statutory right to a speedy trial was not violated,
even though he was reindicted for the same crime,
as approximately 46 days passed between arraignment on the second indictment and
trial. West's A.M.C. ss 97-3-19(2)(b), 99-17-1.
Mitchell v. State, 792 So. 2d 192 (Miss. 2001).

*34705 See People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736, s 21.

Reversing a conviction for attempted burglary and discharging the defendant, the
court, in Commonwealth v Garbett (1978) 256 Pa
Super 488, 390 A2d 208 (ovrld on other grounds Commonwealth v Ardolino 304 Pa
Super 268, 450 A2d 674), held that the defendant had
been denied his right to a speedy trial where his trial had been scheduled more
than 180 days after the filing of the initial
criminal complaint. The first complaint was dismissed on the ground that the
preliminary hearing had been improperly scheduled
less than 3 days after the preliminary arraignment. Approximately 3 weeks later a
second criminal complaint was filed against the
defendant. The case was set for trial on a date more than 180 days from the
filing of the first complaint and the defendant
thereafter moved to dismiss on the ground of speedy trial violations, but such
motion was denied. The court held that the state
could not extend the period for trial by filing the second complaint and implied
that the prosecution should have sought a
continuance of the preliminary hearing rather than filing a second complaint.
Without determining whether the failure to seek a
continuance was an oversight or a reasoned maneuver to extend the speedy trial
period, the court concluded that, regardless of the
prosecution's motive, the result was that the defendant had been subjected to the
harm of an extended period within which he could
be prosecuted.

Research References

Total Client-Service Library References

The following references may be of related or collateral interest to a user of


this annotation.

Annotations
Encyclopedias and Texts

21A Am Jurisprudence 2d, Criminal Law ss 660-662, 852-855.

41 Am Jurisprudence 2d, Indictments and Informations s 13.

9 Federal Procedure, L Ed, Criminal Procedure s 22:741.

Practice Aids

11 Am Jur Pl & Pr Forms (Rev), Federal Criminal Procedure Form 85.

17 Am Jur Pl & Pr Forms (Rev), Mandamus Form 144.

7 Federal Procedural Forms, L Ed, Criminal Procedure s 20:702.

7 Am Jur Proof of Facts 2d 477, Prejudice Resulting from Unreasonable Delay in


Trial ss 1-25.

13 Am Jur Trials 465, Defending Minor Felony Cases.

Federal Statutes

18 U.S.C.A. ss 3161 et seq..

Digests and Indexes

L Ed Digest Criminal Law s 48.

L Ed Index Continuance or Adjournment; Criminal Law; Dismissal and Discontinuance;


Indictment or Information; Speedy Trial.

Quick Index Continuance or Adjournment.

Quick Index Criminal Law.

Quick Index Dismissal or Discontinuance.

Quick Index Indictment or Information.

Quick Index Speedy Trial.

Federal Quick Index Continuance and Adjournment.

Federal Quick Index Criminal Law.

Federal Quick Index Dismissal and Discontinuance.

Federal Quick Index Indictment and Information.

Federal Quick Index Speedy Trial.

Research Sources

The following are the research sources that were found to be helpful in compiling
this annotation.
West Digest Key Numbers

Criminal Law 573-575, 576(1), 576(6), 576(9), 577.14, 577.8, 577.9.

Indictment and Information 15(1), 15(3).

Texts

3 Wharton's Criminal Procedure (12th Ed.), s 420.

[FN1]. The present annotation supersedes the one at 30 ALR2d 462.


[FN2]. See 21A Am Jurisprudence 2d, Criminal Law ss 657, 852.

[FN3]. See 21A Am Jurisprudence 2d, Criminal Law ss 652, 849.

[FN4]. See 21A Am Jurisprudence 2d, Criminal Law ss 662, 856.

*34706 [FN5]. Tolling, as used in this annotation, is not to be confused with the
exclusion of certain periods of time under the
speedy trial statutes. The statutes often provide that certain periods of time,
as for example the time expended under defense
motions, are excluded when adding up the number of days expired between the
starting point of the speedy trial period and the trial
of the accused. In these situations, the speedy trial period continues to run
out, except that the excluded periods of time are
disregarded. See 21A Am Jurisprudence 2d, Criminal Law ss 662, 861, 862.

[FN6]. For a general discussion of a defendant's waiver of the right to a speedy


trial, see 21A Am Jurisprudence 2d, Criminal Law
ss 664, 665, 865-867.

[FN7]. See, for example, Clark v State (1975, Fla App -4) 318 So 2d 513, in which
the court held that the defendant's waiver of his
speedy trial rights filed under the original indictment likewise applied to the
subsequent information based on the same criminal
episode or conduct. The court concluded that the waiver continued to apply to the
subsequent information so long as the defendant
made no motion for a speedy trial after the new information was filed, which
motion would have required that he be brought to trial
within 60 days from the filing date of the motion. The court also noted that the
defendant's statutory speedy trial right was
reinvoked by his motion for a discharge, but he was not entitled to a discharge in
this case where he was brought to trial within
90 days after the denial of that motion.

[FN8]. See People v Dorian (1963, 2d Dept) 18 App Div 2d 1008, 238 NYS2d 633,
where the court held that the period between the
dismissal of the prior accusatory instrument and the return of the subsequent
accusatory instrument was not to be counted when
computing the time elapsed under the speedy trial statute.

[FN9]. But see United States v La Tender (1979, ED Wis) 464 F Supp 607, where the
court held that the speedy trial time ran from
the date of the subsequent indictment even though the original indictment charging
the same crime was dismissed at the request of
the government. The court stated that the Speedy Trial Act (18 U.S.C.A. s 3161)
provided that the time limits set forth in the
statute ran from the date of the subsequent indictment where the defendant was
reindicted for the same offense.

[FN10]. For federal cases, see s 5[b], supra.

[FN11]. The decision of the court in State ex rel. Back v Starke Circuit Court
(1979) 271 Ind 82, 390 NE2d 643, was overruled to
the extent it held that when an identical charge is refiled, it must be regarded
as if there has been no dismissal of the first
affidavit, or as if the first affidavit was filed on the same date as the first.
However, with respect to the holding in Back,
that the period during which a trial must be brought commences with the filing of
the first indictment, even if the indictment is
dismissed on the motion of the accused, see s 12, infra.

[FN12]. But see State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891,
cert den (US) 83 L Ed 34, 105 S Ct 88, infra s
8[c], in which the court held that the speedy trial period began to run from the
defendant's arraignment under the subsequent
information where the dismissal of the initial information due to the
unavailability of two medical witnesses was based on
necessity.

[FN13]. But see State v Hunt (1982) 8 Kan App 2d 162, 651 P2d 967, supra s 8[b],
in which the court held that the period between
the arraignment and the dismissal under the first information was included in the
speedy trial computation where the dismissal
based on the unavailability of a witness was obtained without a showing of
necessity.

[FN14]. To the extent that the court on Back, supra, held that the second
indictment was deemed to have been filed on the same date
as the first indictment, it has been overruled by the court in Bently v State
(1984, Ind) 462 NE2d 58, discussed in s 8[b] supra,
where it was held that the state may only be charged for the period the accused
was held under the original indictment.

*34707 [FN15]. See People v Cullen (1979) 99 Misc 2d 646, 416 NYS2d 1011, and
People v Boykin (1979) 102 Misc 2d 381, 423 NYS2d
366, wherein the courts held that the dismissal of the initial complaints for
failure to prosecute terminated the criminal actions
against the defendants and that the subsequent filing of indictments charging the
same crimes started the speedy trial period
running anew.

[FN16]. But see People v Ramkisson (1982) 114 Misc 2d 535, 452 NYS2d 127, where
the court, denying a defendant's motion to dismiss
an indictment for violation of the speedy trial statute, held that the 6-month
period would be extended where the absence of
sufficient evidence to warrant a grand jury presentation constituted an
exceptional circumstance permitting an extension of the
time period. The defendant was originally charged in a felony complaint with
grand larceny of bank coupons valued in excess of
$250, but that complaint was dismissed for failure to prosecute. The subsequent
indictment returned against the defendant charged
him with having stolen coupons with a value in excess of $1,500, a higher degree
of grand larceny than that in the original
complaint. While acknowledging the holding of People v Osgood (1980) 52 NY2d 37,
436 NYS2d 213, 417 NE2d 507, on remand (2d Dept)
80 App Div 2d 620, 436 NYS2d 61 and on remand (2d Dept) 80 App Div 2d 623, 436
NYS2d 65, supra, that the dismissal of a felony
complaint does not toll the speedy trial statute, the court noted that Osgood
recognized that the absence of sufficient evidence to
present to a grand jury could constitute an "exceptional circumstance" where
additional time was required to obtain the necessary
evidence and the state exercised due diligence in bringing that evidence before
the grand jury. The court found that the
additional evidence here did not become available until shortly before the
indictment was obtained and that such evidence was
needed to corroborate the defendant's confession.

[FN17]. The court in State v Cattee (1983) 14 Ohio App 3d 239, 14 Ohio BR 268, 470
NE2d 421, disagreeing with the court in Sauers,
supra, held that where a felony complaint is filed, the accused is bound over for
the grand jury, and an indictment for a
misdemeanor is returned upon the same conduct which formed the factual basis for
the felony complaint, the statutory time
limitations respecting time of trial of the misdemeanor apply subject to the
limitation that the time for trial for the misdemeanor
shall not exceed the statutory period in which the felony would have been required
to be tried had a felony indictment been
returned.