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02/09/96 EDWARD EARL HOWARD v. STATE

February 9, 1996

EDWARD EARL HOWARD
v.
STATE



Appeal from Montgomery Circuit Court. (CC-92-1967). Eugene Reese, TRIAL JUDGE. This Opinion Substituted on Rehearing for Withdrawn Opinion of July 7, 1995, Previously .

As Amended. S.C. Denied Cert. May 24, 1996. Released for Publication August 22, 1996.

McMILLAN, Judge. All Judges concur except, Cobb., J., recuses.

The opinion of the court was delivered by: Mcmillan

ON APPLICATION FOR REHEARING

McMILLAN, JUDGE

The unpublished memorandum of this court issued July 7, 1995, and the Dissenting opinion of Judge Taylor issued the same day, are hereby withdrawn and the following is substituted therefor.

The appellant was convicted of two counts of murder, violations of § 13A-6-2, Code of Alabama 1975. He was sentenced to 99 years' imprisonment on each conviction.

I

The appellant argues that he was denied a speedy trial. Specifically, he argues that the 29-month delay from his arrest to trial was "presumptively prejudicial" and therefore triggers an explanation of the remaining factors of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972):

"The criteria for determining whether one's right to a speedy trial has been violated are set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of this right; and (4) prejudice to the defendant. Id. at 530, 92 S. Ct. at 2192; Ex parte Carrell, 565 So. 2d 104 (Ala. 1990), cert. denied, 498 U.S. 1040, 111 S. Ct. 712, 112 L. Ed. 2d 701 (1991). Regarding the balancing of these factors, the Barker Court noted the following:

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.

" 107 U.S. at 533, 92 S.Ct. at 2193."

Zumbado v. State, 615 So. 2d 1223 (Ala.Cr.App. 1993).

"Unless the length of time between the commencement of the prosecution and the trial is presumptively prejudicial, it is unnecessary to consider the other Barker factors." Zumbado, at 1234. In this case, the length of time between the issuance of the arrest warrant, in April 1992, and the trial, in September 1994, was roughly 29 months. See Vincent v. State, 607 So. 2d 1290 (Ala.Cr.App. 1992) (time from appellant's arrest to his trial was 31 months and thus lengthy enough to trigger an inquiry into the remaining factors.) Here, the appellant filed his motion to dismiss on December 9, 1993. On April 19, 1994, the Stat filed a motion to set the case for trial. Neither motion was ruled on and there is no indication in the record that the appellant had made an earlier request for a trial date. Additionally, the prejudice that the appellant ...


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