BEFORE HAWKINS, P.J.; PRATHER AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This appeal presents important questions concerning the rights of an accused to a speedy trial under the federal and state constitutions. On this record we have a largely unexplained delay of almost 400 days in bringing the accused to trial, aggravated by some 216 unjustified days in delay following the accused's demand that he be brought to trial. Applying the familiar balancing test emanating from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), we hold that the accused's right to a speedy trial was violated and that he must be discharged.
The entire matter began with the burglary of a dwelling said to have occurred in Harrison County, Mississippi, on March 10, 1982. On March 23 - some thirteen days later Wesley Beavers, Defendant below and Appellant here, was arrested and charged with this burglary. On May 4, 1982, some 42 days later, Beavers was charged with burglary in an indictment returned by the Harrison County Grand Jury.
The matter did not proceed to trial. Instead, some two weeks later, it was ascertained that Beavers was at the time of the burglary subject to a parole order. Beavers had been previously convicted of sale of a controlled substance, had been incarcerated at the Mississippi State Penitentiary, and was out on parole at the time of the burglary in issue. Upon Beavers' return to the penitentiary for his parole violation, the burglary charge acquired a dormant posture.
On September 8, 1982, Beavers, acting through his attorney, made a written demand for trial. He subsequently moved to dismiss the proceedings against him and to quash the indictment for violation of his right to a speedy trial. On April 7, 1983, this motion was overruled and denied, and on April 11, 1983, the prosecution responded with a new grand jury indictment charging Beavers again with the March 10, 1982 burglary but this time alleging that he was an habitual offender within Miss. Code Ann. 99-19-81 (Supp.1985). This second indictment was thereafter reduced from burglary to grand larceny, again with the recidivism feature appended, and on May 20, 1983, Beavers was tried and convicted of grand larceny. By reason of two prior convictions, Beavers was sentenced on May 31, 1983, to a term of five years imprisonment without eligibility for parole, suspension or reduction of sentence. Following the usual post-trial motions
all of which were denied, this appeal has been perfected.
The matter before us is whether there has been a violation of Wesley Beavers' right to a speedy trial on the charges arising out of the March 10, 1982, burglary/larceny. That right is secured to Beavers by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890. *fn1
A chronology of events may be helpful.
March 10, 1982 Burglary committed
March 23, 1982 Wesley Beavers arrested
May 4, 1982 Indictment returned in Cause No. 18,537 charging Beavers with burglary of occupied dwelling
May 24 or 25, 1982 Beavers transferred to state penitentiary ...