Ferrell v. State

WENNER, Judge. Avery V. Ferrell, the appellant, was convicted by a jury in the Circuit Court for Baltimore City (Levin, J.) of breaking into a storeroom and stealing. The court sentenced him to five years in prison. On appeal he contends that: 1.

He was denied his constitutional right to a speedy trial; and 2. He was not given all of the credit he was entitled to receive for the time he served prior to the conviction. Because we agree that he was denied his constitutional right to a speedy trial, we shall reverse the judgment against him. We need not, therefore, decide the second issue.

BACKGROUND Appellant was arrested for storeroom breaking on October 12, 1983. Shortly after that, he was charged with several unrelated offenses, including assault with intent to murder. At his arraignment for storeroom breaking on December 19, 1983, appellant filed a motion for speedy trial. As far as we can tell, 1 pretrial preparations proceeded normally.

Trial was scheduled for March 6, 1984, but was postponed at the request of the parties 2 because appellant was trying to arrange a plea bargain with the State. In order to facilitate the plea negotiations, the storeroom ⁴⁶² breaking charge and the charge of assault with intent to murder were consolidated. 3 A new trial date of April 4, 1984 was set. On that date the case was again postponed. By that time, apparently, plea negotiations had failed.

Although the record is silent on the subject, it appears to us that the charges of storeroom breaking and assault with intent to murder were still consolidated. The cases were scheduled for trial on May 21, 1984; July 31, 1984; and August 1, 1984, but were postponed each time. Trial on the charge of assault with intent to murder began on November 26, 1984, and ended in an acquittal of appellant on November 30, 1984. The State still had not called the storeroom breaking charge for trial.

Appellant remained in jail until January 16, 1985, when he was released on bail. On that date defense counsel called the court’s criminal assignment office to check on the status of the case. The assignment office then called the State’s Attorney and the case was immediately scheduled for trial. On February 5, 1985, a hearing was held on appellant’s motion to dismiss for failure to grant a speedy trial.

The motion was denied. The trial finally began on May 8, 1985, and, as we have noted, appellant was convicted of breaking into a storeroom and stealing. THE LAW We note at the outset that there is no constitutional right to be tried within a specified period of time. Whether or not a defendant’s right 4 to a speedy trial has been denied must be determined on a case-by-case basis.

Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972); ⁴⁶³ Epps v. State, 276 Md. 96 , 345 A.2d 62 (1975). In Barker v. Wingo, supra, the Supreme Court set out a four-part balancing test of factors to be weighed in determining whether a defendant has been denied his right to a speedy trial. The factors included are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) any prejudice to the defendant resulting from the delay. 407 U.S. at 530 , 92 S.Ct. at 2192 . In discussing these factors, however, the Court observed that: “[t]he length of the delay is to some extent a triggering mechanism.

Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into other facts that go into the balance.” Id. Thus, at the outset, appellant must demonstrate that the delay was of constitutional dimension. 1. Length of Delay The length of time to be assessed for speedy trial purposes is the period between the initiation of the prosecution by arrest or formal charge and the date of trial. State v. Gee, 298 Md. 565, 568 , 471 A.2d 712 (1984), cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 .

As we have said, appellant was arrested on October 12, 1983. Therefore, we compute the delay from that date until the date of trial—a delay of eighteen months and twenty six days. This is a delay of constitutional dimension which necessitates an inquiry into the other three factors. See Epps v. State, supra, (12lh month delay held “presumptively prejudicial”); and Smith v. State, 276 Md. 521 , 350 A.2d 628 (1976) (16 month delay). 2.

Reason for the Delay The delay in the case sub judice can be divided into three periods. During the first period, between October 12, 1983 and March 6, 1984, a period of almost five months, the parties engaged in normal pretrial preparations. We regard this time as neutral. Consequently, it is not charged against either party.

Hines