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State v. Willingham

STATE OF OREGON, Appellant, v. JACK WAYNE WILLINGHAM, Respondent

State v. Willingham, 510 P.2d 1339 (Or. Ct. App. 1973)
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Court
Court of Appeals of Oregon · State Appellate Courts
Decided
June 18, 1973
Docket
No. C-72-03-0994
Judges
Schwab, Langtry, Foley
Citations
510 P.2d 133913 Or. App. 5041973 Ore. App. LEXIS 1199
Cited by 11

Opinion — Per Curiam

PER CURIAM.

The state appeals from an order dismissing a second degree assault indictment against defendant. The assault allegedly occurred on March 4, 1972, indictment was returned on March 22, and arrest war *505 rant concurrently issued. Defendant was arrested on October 6, 1972, never having previously known that he was charged with anything, although a policeman had talked with him on the night of the incident. The police had defendant’s address at all times. No excuse is given for the six-and-one-half-month delay in serving the warrant. It was attributable to pure negligence.

After hearing evidence on defendant’s motion to dismiss for lack of speedy trial, the judge said:

“* * * I think any delay at all beyond the usual length of time we attempt to dispose of cases, tends to impair * * *. In this particular case * * * there is unexplained, unnecessary delay. It is, I think, prejudicial * * In the formal written findings and conclusions he said:

“"While defendant showed no substantial actual prejudice * * * and while the length of the delay * * i! was not so prolonged as to permit a legal presumption of prejudice to the defendant’s defense * * *”

the failures of the state caused an unreasonable delay calling for the dismissal.

In Barker v. Wingo, 407 US 514 , 92 S Ct 2182 , 33 L Ed 2d 101 (1972), factors to consider in determining whether delays by prosecution violate speedy trial requirements were set out. The court noted that while intentional delay calculated to prejudice a defense would weigh heavily against the prosecution, that negligence not culpable in nature should nevertheless also be considered. 407 US at 531 .

See also State v. Serrell, 265 Or 216 , 507 P2d 1405 (1973).

The trial court did find defendant was prejudiced, albeit not seriously, in the case at bar. Dis *506 missal is a drastic prophylactic and to he used only sparingly. However, considering the serious negligence of the police in delaying the service of the warrant and this finding of some prejudice, although not substantial, we do not think the trial court order should be reversed.

Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1973: 11974: 21975: 21976: 21977: 11979: 11980: 11981: 119732026peak 1974 · 2

Relies on it most ⓘ

  1. State v. Hutchins548 P.2d 1359 (Or. Ct. App. 1976)
  2. State v. Holtslander629 P.2d 702 (Idaho 1981)
  3. State v. Gunn517 P.2d 316 (Or. Ct. App. 1973)
  4. State v. Ivory564 P.2d 1039 (Or. 1977)
  5. Brady v. State415 A.2d 1126 (Md. 1980)
  6. State v. Williams520 P.2d 462 (Or. Ct. App. 1974)

Most recent

  1. State v. Holtslander629 P.2d 702 (Idaho 1981)
  2. Brady v. State415 A.2d 1126 (Md. 1980)
  3. State v. Love590 P.2d 741 (Or. Ct. App. 1979)
  4. State v. Ivory564 P.2d 1039 (Or. 1977)
  5. State v. Ivory557 P.2d 698 (Or. Ct. App. 1976)
  6. State v. Hutchins548 P.2d 1359 (Or. Ct. App. 1976)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Barker v. Wingo, 407 U.S. 514 (1972) 10,778
State v. Serrell, 507 P.2d 1405 (Or. 1973) 32

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