Summary
In Klimek, as well, we required dismissal where the 180-day period expired without a court-ordered continuance or defendant's agreement to postponement of his trial.
Summary of this case from Com. v. WilliamsOpinion
October 7, 1964.
January 5, 1965.
Criminal law — Practice — Indictment against person serving prison sentence — Murder indictment — Defendant's request for disposition of indictment — Failure to try defendant within 180 days — Effect — Act of June 28, 1957, P. L. 428.
1. In this case in which it appeared that in September, 1963, while defendant was serving a sentence for burglary, he was indicted jointly with X on charges of murder, voluntary manslaughter and burglary; that on November 29, 1963 defendant filed a written request for disposition of these indictments pursuant to the provisions of the Act of June 28, 1957, P. L. 428, § 1 (which provides that in such case the prisoner "shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the District Attorney of the County in which the indictment is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment: . . ."); that the district attorney fixed March 16, 1964 as the trial date and at the request of the defendant, the court, on February 28, 1964, entered an order severing the trial of the jointly indicted defendants; and the district attorney elected to try X first and when the case was called for trial in March a continuance was granted at X's request; and on June 1, 1964, defendant filed a petition to dismiss the indictments against him on the ground that he had not been brought to trial within the 180 day period required by the Act of 1957, and took the present appeal from the order refusing to dismiss the indictments, it was Held, in view of the Act of June 28, 1957, P. L. 428, § 2 (which provides "In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.") that the court below had erred in refusing to dismiss the indictments; and the record was remanded with directions to dismiss the indictments for murder, voluntary manslaughter and burglary.
2. A motion for a severance and a motion for a continuance are distinctly different in every respect; and an order of severance does not constitute sufficient legal reason for the district attorney's action in delaying the trial beyond the 180 day period prescribed in the Act of 1957, P. L. 428. [437]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 283, March T., 1964, from order of Court of Oyer and Terminer and Quarter Sessions of the Peace of Allegheny County, Sept. T., 1963, Nos. 159 and 160, in case of Commonwealth of Pennsylvania v. Stanley Klimek. Order reversed; reargument refused February 4, 1965.
Petition to dismiss indictment charging defendant with murder.
Order entered dismissing petition, opinion by LEGNARD, J. Defendant appealed.
Michael Hahalyak, for appellant.
Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
On September 10, 1963, Stanley Klimek, the appellant, and one Lawrence Stevenson were jointly indicted on charges of murder, voluntary manslaughter and burglary, which allegedly occurred on November 11, 1959. As of the date of the indictments, Klimek was incarcerated in a state correctional institution serving a sentence for burglary.
On November 29, 1963, Klimek filed a written request for disposition of the indictments pending against him pursuant to the provisions of the Act of June 28, 1957, P. L. 428, § 1, 19 P. S. § 881. The district attorney then fixed March 16, 1964, as the date for trial. At the request of Klimek, the court, on February 28, 1964, entered an order severing the trial of the jointly indicted defendants.
This statute provides in pertinent part: "(a) Whenever any person has entered upon any term of imprisonment in any state, county or municipal penal or correctional institution of this Commonwealth, and whenever during the continuance of the term of imprisonment there is pending in this Commonwealth any untried indictment against any such prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the District Attorney of the County in which the indictment is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. . . ."
The Act of June 28, 1957, P. L. 428, § 2, 19 P. S. § 882 provides: "In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."
The district attorney elected to try Stevenson first. However, when the indictments against him were called for trial during the March term of 1964, a continuance was granted at Stevenson's request and trial did not proceed until June 1964. On June 1, 1964, Klimek filed a petition in the court below seeking dismissal of the indictments against him on the ground that he had not been brought to trial within the 180 day period required by the Act of 1957, supra. After hearing, the court refused to dismiss the indictments. An appeal from that order is now before us.
Under the circumstances presented, the district attorney was required to bring Klimek to trial within the 180 day period following proper notice of his request for disposition of the indictments, unless the court, for good cause shown, granted a continuance. Klimek never requested a continuance or agreed to a postponement of his trial beyond the statutorily prescribed period. Further, the court never ordered a continuance, nor was it requested to do so. The simple truth is that the district attorney, acting on his own, failed to call the indictments for trial. Since the statute was not complied with, the court lost jurisdiction to try the indictments and, under the clear mandate of the statute, the indictments must be dismissed.
The court below equated Klimek's motion for a severance with a motion for a continuance. They are distinctly different in every respect. The request for a severance, properly made under the provisions of the Act of March 31, 1860, P. L. 427, § 40, 19 P. S. § 785, merely effected the separation of the cases against the two defendants for trial and nothing more. The motion for severance did not request a continuance and the severing order in no way provided for one. The severance, in itself, did not constitute sufficient legal reason for the district attorney's action in delaying the trial beyond the required period.
The court below in refusing dismissal of the indictments, also placed great stress upon the fact that the district attorney did not wilfully delay the trial. This, of course, is not controlling, nor a valid excuse for noncompliance with the provisions of the statute.
Order reversed and record remanded with directions to dismiss the indictments.