Opinion
No. 2659.
December 3, 1973.
Appeal from the Superior Court of Maricopa County, Warren L. McCarthy, J.
Gary K. Nelson, Atty. Gen., by Louis A. Moore, Former Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa Co. Public Defender, by Rudolph J. Gerber, Special Deputy Public Defender, Phoenix, for appellant.
On September 21, 1972, defendant, Fernando Lopez Robles, was charged by indictment with the sale of heroin on March 9, 1972. Robles' trial began on November 8, 1972 and was concluded with the finding of guilty by the jury on November 9, 1972. His single assignment of error on appeal is that while the asserted sale occurred on March 9th, he was not, in fact, arrested until some five months later on August 25, 1972; and that, because of the long delay between the commission of the asserted offense and the actual trial, the ability to recall the events occurring on March 9th were lessened, both as to himself and one of the State's witnesses.
Defendant relies on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), a case almost identical to that presented here. We, however, have placed this jurisdiction among those contrary thereto, holding that the right to speedy trial attaches at the time the accused is held to answer, and that there has been no denial of due process of law prior to that stage of the case. State v. Rhodes, 104 Ariz. 451, 454 P.2d 993 (1969).
Moreover, the Supreme Court of the United States, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), has held that:
"On its face the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution. * * *
Our attention is called to nothing in the circumstances surrounding the adoption of the amendment indicating that it does not mean what it appears to say, * * *."
The judgment of the court below is affirmed.
HAYS, C.J., CAMERON, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.