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Commonwealth of Kentucky v. Taber1/30/1997
OPINION OF THE COURT BY JUSTICE STUMBO
AFFIRMING
The Commonwealth appeals a decision of the Court of Appeals reversing the conviction of Appellee, Claude A. Taber, and ordering the trial court to dismiss Appellee's indictment.
In December of 1991, police arrested Appellee in connection with a commercial burglary in Georgetown. A Scott County grand jury returned a nine-count indictment against him on February 3, 1992, and the Scott Circuit Court scheduled his trial for April of that year. Appellee, however, requested and received a continuance to undergo a mental evaluation, and the court rescheduled his trial for September of 1992. When the September trial date arrived, the court, on its own motion, postponed Appellee's trial until November 6 due to a conflict with another trial. On October 1, 1992, Appellee, who had been incarcerated since his December 1991 arrest, asserted his right to a speedy trial and moved to dismiss the indictment. At a hearing a few days later, the court refused to dismiss the charges but indicated it might reconsider that decision if the case were not tried in November. Shortly before the November trial date, the Commonwealth requested a continuance, citing the unavailability of three material witnesses. Following a hearing on the matter, during which Appellee reasserted his right to a speedy trial, the trial court entered the following written order:
Upon motion of the Commonwealth for a postponement of the November 6, 1992, trial date and the Defendant having objected to said postponement on grounds that it would violate his constitutional right to a speedy trial:
IT IS HEREBY ORDERED that Indictment No. 92-CR-016 against Claude A. Taber be dismissed.
The Commonwealth did not appeal the dismissal and Appellee was released from jail. After the Commonwealth located its missing witnesses, a grand jury reindicted Appellee on the same charges on January 4, 1993. He moved to dismiss the second indictment, arguing that the prior order barred further proceedings on the issue; this time, however, the trial court refused to dismiss the indictment. Reserving his right to appeal on the indictment/speedy trial issue, Appellee then entered a conditional plea of guilty to third-degree burglary, third-degree criminal mischief, felony theft by unlawful taking and five counts of possession of a forged instrument in the second-degree. The court accepted the plea and sentenced Appellee to eight years in prison. The Court of Appeals reversed, holding in a well-documented opinion that once there has been a final determination that a defendant has been denied his constitutional right to a speedy trial, he may not be reindicted on the same charges. Accordingly, the Court of Appeals ordered that the second indictment be dismissed. We granted discretionary review and now affirm.
While the parties have debated whether, under Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), Appellee's constitutional right to a speedy trial was in fact violated, we agree with the Court of Appeals that the only real issue in this case concerns the impact of the first written order of dismissal. However, since we find that Appellee's reindictment was precluded by our decision in Commonwealth v. Hicks, Ky., 869 S.W.2d 35 (1994), we need not reach the issue which the Court of Appeals deemed decisive.
Hicks involved an individual arrested for suspicion of driving under the influence. When the Commonwealth requested a continuance on the day of trial, the trial Judge, frustrated by the failure of certain prosecution witnesses to appear, dismissed the action. In so doing, the court entered a written order that s
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