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JOHNNY BURGESS v. STATE OF MISSISSIPPI

JULY 24, 1985

JOHNNY BURGESS
v.
STATE OF MISSISSIPPI



EN BANC

SULLIVAN, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein the defendant, Johnny Burgess, was convicted of burglary and sentenced to a term of ten years in the Mississippi Department of Corrections as an habitual offender.

The appellant Burgess was arrested on March 22, 1982, and charged with house burglary. At the time of his arrest, he was on parole from the Mississippi Department of Corrections. After some discussion with his parole officer, Burgess was advised that the state would likely not prosecute him on the burglary charge, if he waived his parole hearing and returned to Parchman to serve his remaining sentence. Burgess stated that he relied on this representation by the parole officer and agreed to waive his parole violation hearing and to return to Parchman and serve the remainder of his sentence. He was not represented by counsel at that time. The appellant, in fact, did that and served an additional 16 months.

 Before his release from Parchman for his parole revocation, Burgess was transported to Hinds County for the purpose of being arraigned on the burglary charge he understood would not be filed against him. Burgess was transported to the Hinds County Detention Center to await action on the house burglary charge. On March 8, 1983,

 the appellant was indicted for the offense of house burglary. Appellant filed a motion to dismiss this indictment. On June 8, 1983, the State of Mississippi obtained an order remanding this charge for the purpose of reindicting the defendant as an habitual offender. On September 8, 1983, a new indictment was obtained against Burgess. The remand and the reindictment were accomplished without notice to Burgess.

 On December 6, 1983, the appellant obtained a hearing on a second motion to dismiss, which was denied; and on December 8, 1983, the appellant went to trial and was convicted and sentenced as an habitual offender to ten years with the Mississippi Department of Corrections without benefit of parole. It should be noted that, during this period of time, the appellant was represented by four different attorneys.

 The appellant contends that he was denied due process of law in that he was not brought to trial until some sixteen months after his arrest. In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court formulated a four-prong balancing test to be used in deciding speedy trial questions. Accord: Wells v. State, 288 So. 2d 860 (Miss. 1974). The factors to be considered are as follows:

 1. Length of the delay;

 2. Reason for the delay;

 3. The defendant's assertion of his right to speedy trial; and

 4. Prejudice to the defendant.

 No one factor is dispositive; all factors must be considered together.

 Our latest case on speedy trial is Bailey v. State, 463 So. 2d 1059 (Miss. 1985). Factually similar to the case at bar, Bailey was convicted of burglary of a dwelling and sentenced as an habitual offender to ten years of imprisonment without parole. He was on parole for a controlled substance conviction in April, 1981, when he was arrested on burglary charges and returned to Parchman to serve out the remainder of his drug conviction. Bailey appealed to the Parole Board at ...


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