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Taylor v. State1/25/2000
led rule in this state is that it is bad practice to join in the same indictment counts for distinct felonies of differing degrees, differently punished, and that, if that be done, the court may, in its discretion, on timely and proper objection, quash the indictment." State v. Rees, 76 Miss 435, 22 So. 829, 829 (1897). The felonies charged in the five count indictment concerning Taylor are not different as to degree or punishment and the lower court had discretion to allow the case to proceed under that indictment. In the case sub judice, there is no overlap of dates among the separate counts as Count V was specifically drawn to avoid this contention. We find no merit to either assertion of error concerning multiplicity or duplicity.
III. THE TRIAL COURT COMMITTED PLAIN ERROR BY OVERRULING DEFENSE COUNSEL'S MOTION TO DISMISS BASED UPON DEFENDANT'S SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL.
. The Mississippi Supreme Court recently outlined the basis for a challenge of a conviction based upon a violation of a defendant's right to a speedy trial in Watts v. State, explaining that
he right to a speedy trial is guaranteed by the sixth and fourteenth amendments to the United States Constitution and art. 3, § 26 of the Mississippi Constitution of 1890. "The constitutional right to a speedy trial attaches at the time a person is effectively accused of a crime." Skaggs v. State, 676 So. 2d 897, 900 (Miss. 1996); Noe v. State, 616 So. 2d 298, 300 (Miss. 1993). An alleged violation of that right is subject to scrutiny under the four-prong analysis set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker factors include 1) the length of the delay, 2) the reason for delay, 3) the defendant's assertion of his right to a speedy trial and 4) prejudice to the defendant by the delay. Id. at 530, 92 S.Ct. 2182. No single factor is dispositive. Skaggs, 676 So. 2d at 900. Rather, this Court looks at the totality of the circumstances in determining whether a defendant's rights have been violated. Herring v. State, 691 So. 2d 948, 955 (Miss. 1997). Watts v. State, 733 So. 2d 214 ( 61) (Miss. 1999).
. "Prejudice will be presumed when the delay from arrest until trial is at least eight months." Rhyne v. State, 98-KA-00416-COA ( 15) (Miss. Ct. App. July 20, 1999). Looking at Taylor's assertion of error, we apply the Barker factors. This Court is careful to note that when evaluating these factors, no mathematical formula exists according to which the Barker weighing and balancing process must be performed. Snow v. State, 735 So. 2d 1094 ( 22) (Miss. Ct. App. 1999). The weight to be given each factor necessarily turns on the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion. Snow, 735 So. 2d at ( 22). The balancing process is not restricted to the Barker factors as other relevant circumstances may be considered. Id. at ( 22).
. The first factor to be considered is the length of the delay. The record reflects that from the date of Taylor's arrest until the date of trial 471 days elapsed. Since no single factor is dispositive, we look to the reason(s) for the delay in getting this case to trial. The record offers some insight on this matter. Taylor was arrested on October 23, 1996, and arraigned on December 16, 1996. During her arraignment, Taylor made a motion for a continuance until the next term of court, set to begin in March of 1997. A joint motion for a continuance was filed at the beginning of the March 1997 court term postponing the trial until the July term of the court. During the July term, the lower court filed a bump or
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