Monday, March 15, 2010

The third time is the charm

Tony A. Potter, of Potter Law Office, P.A., won in State v. Shepard, Case No. 101,106 (March 12, 2010) (unpublished), affirming Judge Toepfer’s dismissal of an Ellis County DUI prosecution on constitutional speedy trial grounds. The COA noted that the case had twice been dismissed at preliminary hearing:

Scott Michael Shepard was arrested for driving under the influence on August 31, 2006. The State formally charged Shepard with DUI on July 10, 2008. At the third preliminary hearing on August 19, 2008, the district court heard and granted Shepard's motion to dismiss.

In support of his motion to dismiss, Shepard noted the case had been filed three times. The State had twice dismissed the prosecution at preliminary hearing. As a result, Shepard argued, the preliminary hearing was untimely under K.S.A. 22-2902(2). Shepard claimed the case should be dismissed under State v. Clemence, 36 Kan. App. 2d 791, 145 P.3d 931 (2006), rev. denied 283 Kan. 932 (2007). Shepard pointed out that there had been a 2-year delay and that no preliminary hearing had yet been held. Shepard claimed he was prejudiced in this regard because he had to endure two preliminary hearings, make court appearances, and do everything required of a defendant for 2 years. The court agreed. It concluded Shepard's speedy trial rights were violated and dismissed the case. The State asks us to reverse and reinstate the prosecution since the statute of limitations has not yet run.

In affirming the district court’s dismissal, the COA reviewed the case using the four factors from Barker v. Wingo, 407 U.S. 514 (1972). The court held: 1) that the delay between arrest and the preliminary hearing was presumptively prejudicial; 2) that the delay was the result of the neglect of the State (and that the dismissals were actions to gain tactical advantage- so as to be successful in the prosecution); 3) that the defendant had asserted the claim at the preliminary hearing; and 4) that the defendant was prejudiced by the “time-consuming and costly” preparation that resulted from having three preliminary hearings.

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