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State v. Fisher

Court of Appeals of Missouri, Western District, First Division

November 22, 2016

STATE OF MISSOURI, Appellant,
v.
AARON M. FISHER, Respondent.

         Appeal from the Circuit Court of Miller County, Missouri The Honorable Patricia Joyce, Judge

          Before Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          OPINION

          Anthony Rex Gabbert, Judge

         The State of Missouri appeals the trial court's decision to sustain Fisher's motion to dismiss the charges for a violation of his fundamental right to a speedy trial. In the State's sole point on appeal, it contends that the trial court erred in ordering dismissal of the charges because there was no speedy trial violation as a matter of law under a proper Barker v. Wingo application. The State argues that a significant portion of the delay is attributable to defendant Fisher, that any delays attributable to the State do not weigh heavily against it and that Fisher suffered no actual prejudice from the delay. We affirm.

         Factual Background

         Aaron Fisher was charged with two counts of statutory sodomy in the first degree[1] in Miller County Circuit Court on October 28, 2009. An arrest warrant was issued and Fisher was taken into custody that same day. The State filed an amended complaint on November 4, 2009, adding one count each of assault in the first degree pursuant to Section 565.050, RSMo. Cum. Supp. and abuse of a child as provided by Section 568.060, RSMo.Cum. Supp. The preliminary hearing was scheduled for March 8, 2010. Upon the State's motion, the case was continued from March 8 to April 12, 2010. The case was continued again on the State's motion to May 17, 2010. Defendant Fisher was eventually arraigned on June 9, 2010 and a trial date was set for January 10, 2011.

         On December 27, 2010 the State filed a motion for leave to endorse additional witnesses. This continuance was granted by the court, without a hearing, on January 10, 2011. The case was reset for trial on September 12, 2011. In response, Fisher filed both a handwritten request for discovery and for a speedy trial on February 22, 2011. The court made a finding of fact that Fisher complied with all statutory requirements in the filing of his motion for speedy trial. Abiding by Fisher's request, the court reset jury trial for May 23, 2011.

         On May 23, 2011, Fisher requested his sole continuance and the jury trial date was again reset for September 12, 2011. However, this date was later stricken without any record or documentation addressing the defendant's right to a speedy trial. The September 12, 2011, date was stricken and a plea hearing was set for September 7, 2011. The record provided shows no date or explanation as to why the September 12, 2011, date was stricken. The court entered an order on October 6, 2011, again without a hearing or explanation cancelling the plea hearing, and ordered the case continued to January 9, 2012. This January 9, 2012, trial date was also stricken without any record or documentation addressing the defendant's right to a speedy trial. Again, the record gives no indication as to why this date was cancelled. The court further failed to make a record concerning which party requested the continuance. The case was reset to September 10, 2012. This trial date was again stricken without any record or documentation addressing who requested the continuance or Fisher's right to a speedy trial.

         No activity took place in this case between September 2012 and March 26, 2013, when a jury trial was again scheduled for February 24, 2014. The State filed its second request for leave to endorse additional witnesses on February 24 and the court set a new trial date for September 8, 2014. Before the trial could take place, the court scheduled a plea hearing for July 28, 2014. One week before the scheduled plea hearing, counsel for Fisher filed a motion to withdraw on July 21, 2014. New counsel for Fisher entered his appearance that same day. Upon finding a factual basis, the court accepted Fisher's plea of guilty to two counts of statutory sodomy on July 28, 2014 and sentencing was scheduled for November 6, 2014. On November 7, 2014, the guilty plea was vacated by the court based on Fisher's statements to the Sentencing Assessment Report writer regarding the commission of the crimes where Fisher told the writer "I know I did it, but I honestly don't remember."

         On December 3, 2014, the presiding judge recused himself and a special judge was appointed by the Missouri Supreme Court on January 13, 2015. Following the reassignment to the special judge, the State did not request a trial date until September 9, 2015, at which time the case was set for trial on November 23, 2015. Fisher filed a motion to dismiss for violation of his statutory and constitutional right to a speedy trial on September 16, 2015. Thereafter, the State filed two additional requests for leave to endorse additional witnesses in the month of October 2015.

         On October 23, 2015, the court issued an order sustaining Fisher's motion and ordered him discharged. In its October 23, 2015 order, the court explained that despite five different opportunities to bring him to trial, nearly six years had lapsed between the date of Fisher's incarceration and the court further found that while the State was responsible for at least four different delays, Fisher could be charged with only one.

         Standard of Review

         The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article I of the Missouri Constitution. State v. Washington, 9 S.W.3d 671 (Mo. App. 1999). The protections of the Sixth Amendment attach when there is a formal indictment or information or when actual restraints are imposed by arrest and holding to answer a criminal charge. State ex rel Garcia v. Goldman, 316 S.W.3d 907, 909 (Mo. banc 2010). The issue of whether the Defendant's Sixth Amendment rights have been violated is a question of law, and therefore, appellate courts review de novo. State v. Washington, 9 S.W.3d at 675. While we review de novo whether the defendant's Sixth Amendment right was violated, we defer to the trial court's findings of fact. State v. Sisco, 458 S.W.3d 304 (Mo. banc 2015).

         Legal Discussion

         It is the responsibility of the State to bring a defendant to trial speedily. State v. Richmond, 611 S.W.2d 351, 355 (Mo. App. 1980). A criminal defendant's right to a speedy trial guarantees that the "State will move quickly to assure the defendant of the early and proper disposition of crimes with which he or she is charged." State v. Smith, 849 S.W.2d 209, 213 (Mo. App. 1993). "The federal and Missouri constitutions 'provide equivalent protection for a defendant's right to a speedy trial.'" State v. Sisco, 458 S.W.3d at 313. The exclusive remedy for the deprivation of this right is the dismissal of the charges with prejudice. Id. at 312, citing State ex rel. McKee v. Riley,240 S.W.3d 720, 732 (Mo. banc 2007). To determine whether there has been a violation of the right to a speedy trial, Missouri courts use the four part "test" set forth in the United States Supreme Court case, Barker v. Wingo, 407 U.S. 514 (1972). Id. at 313; State v. Bolin, 643 S.W.2d 806 (Mo. 1983). When facing a motion to dismiss, the four part test requires the court to consider: (i) the length of the delay, (ii) the reason for the delay, (iii) the defendant's assertion of his right to a speedy trial and ...


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