“The statute does not require that a final verdict be had within [the 120 day] limit, only that the trial commence.”
How later courts described this case
- “The statute does not require that a final verdict be had within [the 120 day] limit, only that the trial commence.”
- "Jury selection is an intrinsic part of the trial process."
- affirming Bowie’s conviction in first degree murder of victim Melvin Traylor
Written by the judges who cited it.
The opinion
LANE, Presiding Judge,
specially concurring:
In this case, Appellant’s trial began on December 1, 1986. The 120 day Interstate Agreement on Detainers (IAD) limit expired December 2, 1986. A mistrial was declared December 10, 1986 and a second trial commenced on January 20, 1987.
I agree with the majority in affirming Appellant’s judgment and sentence. I write separately to address Appellant’s supplemental proposition of error wherein Appellant asserts that because he was not returned to federal custody between trials the State lost jurisdiction to bring him to trial the second time, for which he cites Wilkett v. State, 753 P.2d 383 (Okl.Cr. 1988).
The majority is correct in its conclusion that Wilkett does not hold that Appellant must be returned to federal authorities. However, Wilkett does not address the issue of whether the granting of a mistrial tolls the deadline until the next trial if the Appellant is not returned to the federal authorities. This issue has not yet been addressed by this Court.
To resolve this question, I direct the court to Title 22 O.S.1981, § 1347 Art. IV:
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
When the court declared a mistrial the practical effect was to continue the trial in order that it could be heard by a new jury. This is supported by Countryman v. State, 572 P.2d 294, 297 (Okl.Cr.1977) where this Court held that the declaration of a mistrial had the practical effect of granting Appellant’s Motion for a Continuance. To hold otherwise would preclude the state from proceeding against the appellant every time a mistrial occurs 120 days after appellant has been taken into custody. Such is clearly contrary to the purpose of 22 O.S. § 1347, et seq.