# State v. Brandt

> Supreme Court of Iowa · April 20, 1977 · 253 N.W.2d 253

URL: https://www.frixlaw.com/law-library/cases/9710959

## Case

- **Full name:** STATE of Iowa, Appellant, v. Doug BRANDT, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** April 20, 1977
- **Citations:** 253 N.W.2d 253; 1977 Iowa Sup. LEXIS 1010
- **Precedential status:** Published
- **Opinion:** Dissent by Mason
- **Judges:** Reynoldson, Mason, Rawlings, McCormick, Rees
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710959

## Opinion text

MASON, Justice
(dissenting).
The only issue which needs to be decided in the three cases involved in this appeal is whether the trial court was correct in sustaining defendant’s motion to dismiss for lack of speedy trial.
*263 In reversing the trial court on this issue the majority states its conclusion in this fashion: “We hold trial court abused its limited discretion in finding the State did not meet its burden to show good cause for delay in this case. See State v. Albertsen, 228 N.W.2d [94] at 98 [(Iowa 1975)].”
In Iowa when a defendant in a criminal case moves to dismiss an information or indictment filed against him for failure to provide a speedy trial, he may base such motion either on the state and federal constitutional provisions prescribing the right of a speedy trial, or he may rely on the provisions of section 795.2, The Code. Of course a defendant may assert both.
Since our opinion in State v. Gorham, 206 N.W.2d 908 , filed April 25, 1973, wherein we discarded the demand-waiver doctrine, our cases have not been entirely clear whether this court has relied upon the constitutional guarantees or on the statute in reaching its determination of a defendant’s claim of lack of a speedy trial.
When the motion to dismiss for want of speedy trial is grounded upon the constitutional guarantees provided in Amendments 6 and 14 of the federal constitution and Article I, Section 10 of the Iowa Constitution, the four-factor balancing test announced in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 , is involved. State v. Lee, 222 N.W.2d 471, 474 (Iowa 1974); Boyle v. Critelli, 230 N.W.2d 495, 497 (Iowa 1975). In Barker the Court held that a balancing test should be applied to each case, with consideration given the following factors: (1) length of delay; (2) reason for delay; (3) the defendant’s assertion of his right to speedy trial; (4) prejudice to him. State v. Steadham, 231 N.W.2d 29, 31 (Iowa 1975).
However, in the case presently before us defendant’s motion to dismiss the information for failure to provide a speedy trial is based solely on the provisions of section 795.2. At no point in the motion did defendant assert his right to a dismissal was predicated on either the state or federal constitutional guarantees.
In pertinent part section 795.2 provides that, “If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it to be dismissed, unless good cause to the contrary be shown.”
It goes further in implementing a defendant’s speedy trial right than the state and federal constitutions, State v. Albertsen, 228 N.W.2d at 97, and has been construed to require trial within 60 days from the date an indictment or information is filed unless defendant waives his right or unless the state shows good cause for postponement. State v. Leonard, 240 N.W.2d 690, 691 (Iowa 1976).
The State does not assert defendant waived his right to a speedy trial.
The state, not the defendant, has the obligation to bring a defendant to trial under the provisions of this statute. State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975); State v. Montgomery, 232 N.W.2d 525, 527 (Iowa 1975). Consequently, when the state, as here, relies on “good cause” in resistance to a defendant’s motion to dismiss for failure to provide a speedy trial the burden in hearings at the trial court level is on the state to show delay beyond the period stated in the statute comes within the “statutory good cause” exception. State v. Boyd, 224 N.W.2d 609, 611 (Iowa 1974); State v. Albertsen, 228 N.W.2d at 97. Good cause for delay is shown when the delay is attributable to defendant. State v. Lyles, 225 N.W.2d at 126 ; State v. Montgomery, 232 N.W.2d at 527 ; State v. Truax, 232 N.W.2d 861, 863 (Iowa 1975); State v. LaPlant, 244 N.W.2d 240, 242 (Iowa 1976). In this connection this court has said it is not necessary for defendant to show delay has been prejudicial to him when he relies on section 795.2. State v. Sassman, 226 N.W.2d 808, 809 (Iowa 1975).
In regard to the requirement of trial within 60 days specified in the statute this court has said:
“* * * Every limitation statute sets up an arbitrary date after which certain *264 actions cannot be brought or certain rights cannot be enforced. One cannot escape the effect of such statutes by showing they were violated only a little bit.” State v. Nelson, 222 N.W.2d 445, 449 (Iowa 1974). See also State v. Hines, 225 N.W.2d 156, 159 (Iowa 1975) and State v. Sassman, 226 N.W.2d at 809 .
In other words, whether the delay in bringing a defendant to trial within the statutory period is one day or six months, the only way in which the impact of the statute can be avoided when waiver is not involved is by a showing of good cause. This means the length of the delay is relevant only as bearing on the quantum of proof required of the state to come within the “statutory good cause” exception. Hence, the longer the delay the stronger must be good cause. See State v. Goff, 244 N.W.2d 579, 582 (Iowa 1976).
The trial court based its conclusion the State had failed to sustain its burden of showing good cause for delay on the principle that it is possible and permissible under Iowa criminal law for a defendant charged with an indictable misdemeanor to never personally appear in the court. The trial court relied in part on section 775.2, The Code, for its position. This section provides:
“A person charged with a felony, or in custody without an attorney, must be personally present for arraignment, but in other cases he may appear therefor by counsel.”
Arraignment consists in reading the indictment or information to the defendant, and, unless previously done, delivering to him a copy thereof and the endorsements thereon, and informing him that, if the name by which he is indicted or informed against is not his true name, he must then declare what his true-name is, or be proceeded against by the name in the indictment or information, and asking him what he answered to the charge. Section 775.8, The Code.
The relation between an arraignment and the trial stage is pointed out in State v. Lyles, 225 N.W.2d at 126 , where the court said:
“Arraignment is a prerequisite to trial, unless waived. § 775.1, The Code; * * * [citing authorities]. The State had a duty to proceed as required by statute. In doing so, it had a right to wait until arraignment to have a trial date set. Until arraignment the State did not know that defendant desired a trial and that he was ready for trial.”
Thus, the problem is whether the trial court erred in relying on section 775.2 as a basis for its conclusion the State had failed to sustain its burden of showing good cause for delay. This involves the question whether a misdemeanant may appear at arraignment through counsel without being personally present.
It is my view that he may since section 775.2 clearly states defendant “may appear therefor by counsel.”
It is not necessary to reach the problem presented by section 777.19 which deals with a defendant’s presence during trial. Cases from other jurisdictions dealing with the problem of defendant’s presence at trial do not touch the problem presented by section 775.2 and are of no help in resolving the problem arising at the arraignment stage. See Barnett v. Russell, 299 Ky. 242 , 185 S.W.2d 261 ; State v. Super, 281 Minn. 451 , 161 N.W.2d 832 ; State v. Vincent, 222 N.C. 543 , 23 S.E.2d 832, 833 ; People v. Winship, 309 N.Y. 311 , 130 N.E.2d 634, 635 ; Souther v. Reid, 101 F.Supp. 806, 807 (E.D. Va.1951).
This is not a factual situation where a defendant is claiming a denial of rights afforded him at the arraignment stage as a basis for dismissal. Therefore, we need not reach the question whether this record would support a finding defendant had waived those rights by his failure to be present at arraignment.
Our review of a ruling on motion to dismiss for delay in trial is not de novo. State v. Lamar, 224 N.W.2d 252, 254 (Iowa 1974); State v. LaPlant, 244 N.W.2d at 242.
*265 This court has announced that the grant or denial of a motion to dismiss does not rest in the discretion of the trial court; it must be determined upon legal grounds and is subject to review by this court. See Newton v. City of Grundy Center, 246 Iowa 916, 919 , 70 N.W.2d 162, 163-164 ; Ambrose v. Harrison Mutual Insurance Association, 206 N.W.2d 683, 684 (Iowa 1973); and Symmonds v. Chicago, M., St. P. & P. R. Co., 242 N.W.2d 262, 264 (Iowa 1976).
Under this limited extent of review I doubt the propriety of basing a determination whether the State had sustained its burden of proof of establishing good cause for delay in defendant’s trial upon the exercise of discretion by the trial court.
The State made no effort to fulfill its duty to bring this defendant to trial until 52 days after the informations were filed in district court. Because the State subsequently did not notify defendant’s lawyer that arraignment was scheduled for the fifty-ninth day of the speedy-trial period, we will never know whether the arraignment would otherwise have proceeded on that date or whether trial could have commenced within the statutory period. However, we know the State did not consider defendant’s presence at arraignment to be essential. We also know the State was unable in fact to accomplish in eight days at the end of the 60-day period what it should have used the entire period to do. In view of the State’s obvious dereliction during almost all of the statutory period, I am unwilling to say the State established good cause as a matter of law for its failure to bring defendant to trial in 60 days.
I would affirm the trial court and not reach the other issues dealt with by the majority.
RAWLINGS and MeCORMICK, JJ., join this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710959. Public record. Not legal advice.