Copyright (c) West Group 2003 No claim to original U.S. Govt. works 39 A.L.R.

4th 899 (1985) *34636 American Law Reports ALR4th Copyright (c) 1985 The Lawyers Co-operative Publishing Company Annotation APPLICATION OF SPEEDY TRIAL STATUTE TO DISMISSAL OR OTHER TERMINATION OF PRIOR INDICTMENT OR INFORMATION AND BRINGING OF NEW INDICTMENT OR INFORMATION John H. Derrick, J.D. TABLE OF CONTENTS Article Outline Research References - Total Client-Service Library References - Research Sources Index Table of Jurisdictions Represented Article ARTICLE OUTLINE I. Preliminary Matters s 1. Introduction [a] Scope [b] Related matters s 2. Summary and comment [a] Generally [b] Practice pointers II. General principles s 3. View that statutory speedy trial period continues to run despite termination of prior accusatory instrument s 4. View that statutory speedy trial period starts anew under subsequent accusatory instrument s 4.5. View that statutory speedy trial period is tolled during time between termination of initial accusatory instrument and filing of subsequent accusatory statement III. Termination of prior accusatory instrument attributable to prosecution s 5. Generally

[a] Held to continue to run [b] Held to be tolled [c] Held to run anew s 6. Where subsequent accusatory instrument was based on new evidence or facts s 7. Where prior accusatory instrument was alleged to be defective or otherwise invalid [a] Held to continue to run [b] Held to run anew [c] Held to be tolled

s 8. Where prosecution witness was alleged to be unavailable [a] Held to continue to run [b] Held to be tolled [c] Held to run anew s 9. Where prior accusatory instrument was filed in wrong court s 10. s 11. Where prior accusatory instrument was terminated with leave to reinstate Other particular circumstances IV. Termination of prior accusatory instrument attributable to defense s 12. s 13. s 14. Generally Where prior accusatory instrument was terminated on speedy trial grounds Where prior accusatory instrument was terminated for lack of probable cause

s 15. Where prior accusatory instrument was alleged to be defective or otherwise invalid [a] Held to run anew [b] Other results s 16. Where prior accusatory instrument charged felony and subsequent accusatory instrument charged misdemeanor s 17. Other particular circumstances

V. Termination of prior accusatory instrument attributable to other than prosecution or defense s 18. Generally

s 19. Where prior accusatory instrument was alleged to be defective or otherwise invalid s 20. Where prosecution witness was alleged to be unavailable

s 21. Where prior accusatory instrument was terminated for lack of probable cause or failure to state prima facie case s 22. s 23. s 24. Where prior accusatory instrument was terminated for failure to prosecute Where prior accusatory instrument was brought in different court Other particular circumstances

[a] Held to run anew [b] Other results INDEX Abduction s 18

*34637 Abortion s 11 Absence of defendant s s 3[a], 5[b] Absence of witnesses s s 8, 20 Alcohol, driving under influence s s 7[a], 16 Armed robbery s s 10, 11 Arrest, resisting s 7[a] Arson s 17

Assault and battery s s 5[a], 6, 8, 11, 20, 24[b] Assistance of counsel, effective s 4 Automobiles and traffic s s 5[c], 6, 7[a], 15[b], 16, 18 Availability of defendant s s 3[a], 5[b] Availability of witnesses s s 8, 20 "Backlog" in prosecutor's office s 18 Bail s s 4[a], 5[b], 8[c] Bank check, intent to defraud s 23 Barbiturate sale s 16 Breaking and entering s 5[c] Bribery s 5[a] Burglary s s 5, 7[b], 8[c], 12, 14, 18, 19, 21, 24 Carrying weapons s 5[a] Checks, intent to defraud s 23 Cocaine sale s 5[a] Comment s 2 Confinement of defendant s s 3 et seq. Conspiracy s s 5[a, c], 6, 7[b], 18 Continuance, request for s s 5[b], 7[a] Cooperation of witness s 8[a] Credit transaction violations s 12 Custody of defendant s s 3 et seq. Death of witness s 8[b] Defective instrument s s 7, 15, 19 Defense responsible for termination of instrument s s 12-17 Description and identification defective s s 7, 15[a] Disorderly conduct s 5[b] Drivers' license revoked s 6

Driving under influence s s 7[a], 16 Drug offense s s 5, 7[a], 13, 15[a], 16, 18, 19, 22 Drunk driving s s 7[a], 16 Eavesdropping s 5[c] Effective assistance of counsel s 4

Embezzlement s 5[a] Evidence suppressed s s 5[c], 19 Exclusion of juror s 5[b] Eyewitness' unavailability s 20 False pretenses, money obtained by s s 5[c], 6 Federal prison incarceration s 8[b] Felony/misdemeanor inconsistency s 16 Filing instrument in wrong court s 9 Fire, setting of s 17 Foreign county s 5[c] Forgery s s 5[c], 22 Fornication s 19 Hallucinogen, possession of s 22 Hashish, delivery of s 7[a] Heroin sale s 18 Homicide s s 5-7, 14, 15[a], 16, 18, 20, 21, 24[a] Identification and description defective s s 7, 15[a] Intoxication s s 7[a], 16 Introduction s 1 Invalidity of prior instrument s s 7, 15, 19 Jail or prison confinement s s 3 et seq. Joinder of defendants s s 5[a], 6, 14 Jurisdictional defect s s 9, 23 Juror excluded s 5[b] Jury trial waived s 5[a] Justice of the peace s s 9, 20 Juvenile proceedings s s 11, 17 Kidnapping s 18

Larceny s s 3-5, 7[b], 8[c], 10-14, 18-21, 24 *34638 Law enforcement officer, battery on s 6 Leave to reinstate prior instrument s s 10, 22 Liquor, driving under influence s s 7[a], 16 Mail stolen s 5[a]

Manslaughter s s 14, 16, 21 Marijuana offense s s 5[c], 7[a] Misconduct of prosecutor s 24[b] Misdemeanor/felony inconsistency s 16 Money obtained by false pretenses s s 5[c], 6 Motorcyclist's death s 18 Motor vehicles s s 5[c], 6, 7[a], 15[b], 16, 18 Murder s s 5-7, 14, 15[a], 16, 18, 20, 21, 24[a] Name erroneous in indictment s 7[b] Narcotics offense s s 5, 7[a], 13, 15[a], 16, 18, 19, 22 Negligent homicide s 18 New evidence or facts s s 6, 21 Obscene material distribution s 7[b] Obtaining money by false pretenses s s 5[c], 6 Official misconduct s 5[a] Ordinance, validity s 15[b] Perjury s 20 Pistol license s 5[a] Police officer, assault on s 5[a] Pornography distribution s 7[b] Practice pointers s 2[b] Prescription forgery s 22 Prima facie case, failure to state s 21 Prison confinement s s 3 et seq. Probable cause lacking s s 14, 21 Prosecution responsible for termination of instrument s s 5-11 Rape s 5[c] Receiving stolen property s s 5[a], 7[a]

Recording of instrument in wrong court s s 9, 23 Related matters s 1[b] Resisting arrest s 7[a] Retaliation against witness s 5[a] Revocation of license s 6

Robbery s s 3, 4, 10-14, 20 Scope of annotation s 1[a] Sex offenses s s 5[c], 7[a], 19 Signature s 19 Stay of proceedings s 19 Stimulant sale s 16 Stolen property s s 5[a], 7[a], 10, 21 Summary s 2 Suppression of evidence s s 5[c], 19 Tampering with witness s 5[a] Theft s s 3-5, 7[b], 8[c], 10-14, 18-21, 24 Traffic and automobiles s s 5[c], 6, 7[a], 15[b], 16, 18 Trespass s 24[a] Validity of prior instrument s s 7, 15, 19 Venue improper s 5[c] Waiver of rights s s 5, 12, 15[b] Weapons offense s s 5[a], 10, 11 Witness' availability s s 8, 20 TABLE OF JURISDICTIONS REPRESENTED UNITED STATES U.S.C.A. Const Amend 6. 8 U.S.C.A. s 1324(a). See s 6 See s 5[b] See s 5[b] See s 3

18 U.S.C.A. ss 2, 3161.

18 U.S.C.A. ss 922(g)(1), 3161(b), 3162(a)(1). 18 U.S.C.A. s 3161. 18 U.S.C.A. ss 3161 See ss 5[b, c], 12, 13 et seq. See s 4

*34639 18 U.S.C.A. s 3161 et seq.. See s 13 18 U.S.C.A. s 3161(a). See s 3

18 U.S.C.A. s 3161(b). See s 11 18 U.S.C.A. s 3161(c). See ss 4, 5[a] 18 U.S.C.A. s 3161(c)(1). See s 5[a, b]

18 U.S.C.A. s 3161(d). See ss 6, 12, 13 18 U.S.C.A. s 3161(d)(1). See s 12

18 U.S.C.A. s 3161(e).

See ss 4, 11

18 U.S.C.A. s 3161(h). See ss 5[b], 11 18 U.S.C.A. s 3161(h)(1)(F). See s 5[a] 18 U.S.C.A. s 3161(h)(6). See s 5[b]

. United States v McKay (1994, CA11 Fla) 30 F3d 1418, 8 FLW Fed C 569--s 5[b] Garcia v. State, 947 P.2d 1363--s 24[a] U.S. v. Alford, 142 F.3d 825--s 3 U.S. v. Barnes, 251 F.3d 251--s 4 U.S. v. Broadwater, 151 F.3d 1359--s 5[b] U.S. v. Brown, 183 F.3d 1306--s 13 U.S. v. Carrasco, 257 F.3d 1045--s 3 U.S. v. Castillo-Pacheco, 53 F. Supp. 2d 55--s 11 U.S. v. Feng, 25 Fed. Appx. 635--s 11 U.S. v. Goodman, 36 F. Supp. 2d 947--ss 4, 5[c] U.S. v. Harley, 39 Fed. Appx. 789--s 4 U.S. v. Hemmings, 258 F.3d 587--s 3 U.S. v. Howard, 63 F. Supp. 2d 728--s 6 U.S. v. Martinez, 47 F. Supp. 2d 906--s 4 U.S. v. O'Dell, 154 F.3d 358, 1998 FED App. 267P--s 5[c] U.S. v. Osteen, 254 F.3d 521--s 5[b] U.S. v. Perez, 217 F.3d 323--s 5[b] U.S. v. Pitner, 307 F.3d 1178--s 11 U.S. v. Robinette, 177 F. Supp. 2d 279--s 4 U.S. v. Varela, 40 Fed. Appx. 490--s 12 United States v Arkus (1982, CA9 Cal) 675 F2d 245--s 5[b] United States v Beal (1991, CA8) 940 F2d 1159--s 11 United States v Bergdoll (1976, DC Del) 412 F Supp 1308--s 5[a] United States v Bergouignan (1985, CA11 Fla) 764 F2d 1503--s 4

United States v Bilsky (1981, CA6 Tenn) 664 F2d 613--s 5[b] United States v Borum (1982, DC Dist Col) 544 F Supp 170--s 5[b] United States v Colon (1993, DC Mass) 831 F Supp 912--s 13 United States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed Rules Evid Serv 454--ss 5[b], 12 United States v Duque (1995, CA9 Ariz) 62 F3d 1146, 95 CDOS 6224, 95 Daily Journal DAR 10608--s 23

United States v Feldman (1985, CA7 Ill) 761 F2d 380, 18 Fed Rules Evid Serv 1, 84 ALR Fed 649--s 24[a] *34640 United States v Flores (1974, CA2 NY) 501 F2d 1356--s 5[b] United States v Fuesting (1988, CA7 Ind) 845 F2d 664--s 5[b] United States v Gonzales (1990, CA5 Tex) 897 F2d 1312--ss 5[a], 11 United States v Hicks (1982, CA5 La) 693 F2d 32--s 5[b] United States v Hillegas (1978, CA2 NY) 578 F2d 453--s 5[b] United States v Kelly (1995, CA2 NY) 45 F3d 45--s 5[b] United States v La Tender (1979, ED Wis) 464 F Supp 607--s 5[b] United States v Leone (1987, CA8 Iowa) 823 F2d 246, 23 Fed Rules Evid Serv 751-s 5[b] United States v Magana-Olvera (1990, CA9 Wash) 917 F2d 401, 31 Fed Rules Evid Serv 703--s 13 United States v Maloy (1993, MD Fla) 835 F Supp 1373--s 5[a] United States v May (1985, CA6 Mich) 771 F2d 980--ss 4, 6, 10 United States v Mitchell (1983, CA1 Mass) 723 F2d 1040--s 5[a] United States v Nava-Salazar (1994, CA7 Ill) 30 F3d 788--s 5[b] United States v Nesbitt (1988, CA7 Ind) 852 F2d 1502--ss 5[c], 10 United States v Novak (1983, CA3 Pa) 715 F2d 810--s 5[a] United States v Olivo (1995, CA10 Okla) 69 F3d 1057--s 5[b] United States v Page (1988, CA8 Minn) 854 F2d 293--s 24[a] United States v Pajari (1983, CA8 Minn) 715 F2d 1378--s 5[b] United States v Pelini (1995, ND Ill) 896 F Supp 797--s 6 United States v Pereira (1978, ED NY) 463 F Supp 481--s 12 United States v Petak (1985, SD Tex) 623 F Supp 74--s 5[c] United States v Ramos (1984, SD NY) 588 F Supp 1223--s 17 United States v Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920--s 5[b] United States v Roy (1991, SD Ohio) 791 F Supp 179--s 3 United States v Salmon (1981, SD Tex) 504 F Supp 1270--s 5[b] United States v Schoeneman (1995, ND Ill) 893 F Supp 820--s 4

United States v Sebastian (1977, WD NY) 428 F Supp 967--s 5[b] United States v Taylor (1988, US) 101 L Ed 2d 297, 108 S Ct 2413--s 2[a] United States v Thomas (1986, CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57 AFTR 2d 86-1215--ss 3, 4 United States v Vlahov (1995, ND Cal) 884 F Supp 354--s 3 United States v Williams (1994, CA5 Miss) 12 F3d 452--s 11 United States v Wilson (1991, MD Ga) 762 F Supp 1501--s 6

ALABAMA Ringstaff v. State, 451 So. 2d 375--ss 11, 17 ALASKA Koch v State (1982, Alaska App) 653 P2d 664--s 18 Peterson v State (1977, Alaska) 562 P2d 1350--s 5[a] ARIZONA State ex rel. Berger v Superior Court of County of Maricopa (1975) 111 Ariz 524, 534 P2d 266--s 14 State v Avriett (1975) 25 Ariz App 63, 540 P2d 1282--s 12 *34641 State v Edwards (1979) 122 Ariz 206, 594 P2d 72--s 14 State v Guerrero (1989, Ariz) 769 P2d 1014, 26 Ariz Adv Rep 27--s 5[a] State v Gutierrez (1978, App) 121 Ariz 176, 589 P2d 50--s 13 State v Johnson (1976) 113 Ariz 506, 557 P2d 1063--s 7[b] State v McDonald (1977) 117 Ariz 159, 571 P2d 656--s 24[a] State v Million (1978) 120 Ariz 10, 583 P2d 897--s 5[c] State v Pogue (1976) 113 Ariz 478, 557 P2d 163--s 5[c] State v Rose (1978) 121 Ariz 131, 589 P2d 5--s 18 State v Soto (1977) 117 Ariz 345, 572 P2d 1183--s 14 State v Taylor (1976) 27 Ariz App 330, 554 P2d 926--s 20 ARKANSAS Cox v State (1991) 304 Ark 234A, 803 SW2d 555--s 5[a] Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115--s 5[b] Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708--s 12 State v Washington (1981) 273 Ark 82, 617 SW2d 3--s 8[a] Thornton v State (1994) 317 Ark 257, 878 SW2d 378--s 4 Williams v State (1980) 271 Ark 435, 609 SW2d 37--s 5[a] CALIFORNIA Bellizzi v Superior Court of Stanislaus County (1974) 12 Cal 3d 33, 115 Cal Rptr 52, 524 P2d 148--s 18

Crockett v Superior Court of Santa Clara County (1975) 14 Cal 3d 433, 121 Cal Rptr 457, 535 P2d 321--s 13 People v Allen (1963, 3d Dist) 220 Cal App 2d 796, 34 Cal Rptr 106--s 11 People v Conway (1969, 2d Dist) 271 Cal App 2d 15, 76 Cal Rptr 251--s 12 People v Faulkner (1972, 1st Dist) 28 Cal App 3d 384, 104 Cal Rptr 625--s 11 People v Godlewski (1943) 22 Cal 2d 677, 140 P2d 381--s 13 People v Nelson (1964, 2d Dist) 228 Cal App 2d 135, 39 Cal Rptr 238--s 16

People v Wilkes (1960, 2d Dist) 177 Cal App 2d 691, 2 Cal Rptr 594--s 11 Rosenberg, Re Application of (1937) 23 Cal App 2d 265, 72 P2d 559--s 12 COLORADO Amon v People (1979) 198 Colo 172, 597 P2d 569--s 7[a] Ex parte Snyder (1942) 110 Colo 35, 129 P2d 672--s 9 Meehan v County Court (1988, Colo App) 762 P2d 725--s 4 People ex rel. C.O. (1994, Colo App) 870 P2d 1266--s 4 People v Dunhill (1977) 40 Colo App 137, 570 P2d 1097--s 5[c] People v Kraemer (1990, Colo App) 795 P2d 1371--s 11 People v Scott (1980) 200 Colo 365, 615 P2d 680--s 6 People v Wilkinson (1976) 37 Colo App 531, 555 P2d 1167--s 5[c] Rowse v District Court of County of Alamosa (1972) 180 Colo 44, 502 P2d 422--s 19 DELAWARE Latson v State (1958, Sup) 51 Del 377, 146 A2d 597--s 15[a] State v Johnson (1989, Del Super) 564 A2d 364--s 8[b] DISTRICT OF COLUMBIA Dickerson v United States (1994, Dist Col App) 650 A2d 680--s 5[b] *34642 Givens v United States (1994, Dist Col App) 644 A2d 1373--s 5[b] FLORIDA Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687--s 5[a] 3 Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687, 20 FLW D 2573--s Atkins v. State, 785 So. 2d 1219--s 11 Clark v State (1975, Fla App -4) 318 So 2d 513--ss 2[b], 5[a] Coleman v Eaton (1989, Fla App -5) 540 So 2d 915, 14 FLW 799--s 13 Datema v Barad (1979, Fla App -3) 372 So 2d 193--s 5[a] Dechaine v. State, 751 So. 2d 100--s 11 Dorian v State (1994, Fla) 642 So 2d 1359, 19 FLW S 511--ss 3, 5[a]

Genden v Fuller (1994, Fla) 648 So 2d 1183, 19 FLW S 559--s 5[a] Gue v State (1974, Fla App -2) 297 So 2d 135--s 5[a] Homer v State (1978, Fla App -3) 358 So 2d 1176--s 5[a] State ex rel. Bird v Stedman (1969, Fla App -3) 223 So 2d 85--s 5[a] State ex rel. Branch v Wade (1978, Fla App -1) 357 So 2d 473--s 6 State ex rel. Green v Patterson (1973, Fla App -2) 279 So 2d 362--s 5[a]

State ex rel. Williams v Cowart (1973, Fla App -3) 281 So 2d 527--s 5[a] State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S 391--ss 5[a], 8[a] State v Boren (1973, Fla App -3) 273 So 2d 415--s 5[a] State v Boyd (1979, Fla App -2) 368 So 2d 54--s 5[a] State v Dorian (1993, Fla App -3) 619 So 2d 311, 18 FLW D 856--s 8[b] State v Frank (1991, Fla App -4) 573 So 2d 1070--s 15[b] State v Jordan (1983, Fla App -2) 436 So 2d 291--s 5[a] State v McFadden (1993, Fla App -4) 622 So 2d 483, 18 FLW D 1511--s 8[a] State v Rheinsmith (1978, Fla App -2) 362 So 2d 698--s 5[a] State v. Jackson, 784 So. 2d 1229--s 3 Stewart v State (1985, Fla App -1) 470 So 2d 101, 10 FLW 1394--s 11 Swanson v Love (1974, Fla App -2) 290 So 2d 112--s 5[a] Williams v State (1993, Fla) 622 So 2d 477, 18 FLW S 393--s 5[a] Williams v. State, 788 So. 2d 1123--s 3 Wright v State (1980, Fla App -5) 387 So 2d 1060--s 5[a] GEORGIA Banks v. State, 251 Ga. App. 421, 554 S.E.2d 500--s 4 Dean v State (1986) 180 Ga App 770, 350 SE2d 489--s 15[a] Durham v State (1851) 9 Ga 306--s 7[a] HAWAII State v Balauro (1992) 73 Hawaii 70, 828 P2d 267--ss 5[b], 8[a] State v Fair (1981) 63 Hawaii 314, 627 P2d 277--s 13 State v Holt (1984, Hawaii) 684 P2d 971--s 5[b] State v Ikezawa (1993, Hawaii) 857 P2d 593--s 5[b] State v Stone (1982) 65 Hawaii 308, 651 P2d 485--s 8[a] *34643 IDAHO State v Davidson (1957) 78 Idaho 553, 309 P2d 211--s 5[a] State v Goodmiller (1963) 86 Idaho 233, 386 P2d 365--s 8[c]

State v. McKeeth, 38 P.3d 1275--s 3 ILLINOIS Brooks v People (1878) 88 Ill 327--s 5[a] Newlin v People (1906) 221 Ill 166, 77 NE 529--s 5[a] People ex rel. Nagel v Heider (1907) 225 Ill 347, 80 NE 291--s 5[a]

People v Alvelo (1990, 1st Dist) 201 Ill App 3d 496, 147 Ill Dec 131, 559 NE2d 131--s 11 People v Austin (1990, 1st Dist) 195 Ill App 3d 17, 141 Ill Dec 731, 551 NE2d 1074--s 5[b] People v Bauer (1979) 70 Ill App 3d 537, 27 Ill Dec 50, 388 NE2d 1013--s 10 People v Christensen (1983) 113 Ill App 3d 938, 69 Ill Dec 762, 448 NE2d 222--s 8[b] People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d 1258--ss 5[b], 11 People v Decatur (1989, 1st Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548 NE2d 509--ss 5[b], 11 People v East-West Univ. (1994, Ill App 1st Dist) 202 Ill Dec 55, 637 NE2d 594-s 10 People v Fosdick (1967) 36 Ill 2d 524, 224 NE2d 242--s 5[a] People v Freedman (1987, 1st Dist) 155 Ill App 3d 469, 108 Ill Dec 165, 508 NE2d 326--s 11 People v Garcia (1978) 65 Ill App 3d 472, 22 Ill Dec 51, 382 NE2d 371--ss 20, 21 People v Gimza (1977) 56 Ill App 3d 477, 14 Ill Dec 82, 371 NE2d 1135--s 21 People v Hamby (1963) 27 Ill 2d 493, 190 NE2d 289--s 5[a] People v Hatchett (1967) 82 Ill App 2d 40, 226 NE2d 97--s 5[a] People v Howard (1990, 5th Dist) 205 Ill App 3d 702, 151 Ill Dec 113, 563 NE2d 1219--s 3 People v Nelson (1962) 25 Ill 2d 38, 182 NE2d 704--s 10 People v O'Malley (1982) 108 Ill App 3d 823, 64 Ill Dec 333, 439 NE2d 998--s 24[b] People v Parker (1978) 59 Ill App 3d 302, 16 Ill Dec 592, 375 NE2d 465--s 5[a] People v Rodgers (1982) 106 Ill App 3d 741, 62 Ill Dec 165, 435 NE2d 963--s 10 People v Sanders (1980) 86 Ill App 3d 457, 41 Ill Dec 453, 407 NE2d 951--s 11 People v Stuckey (1967) 83 Ill App 2d 137, 227 NE2d 135--s 7[a] People v Toney (1978) 58 Ill App 3d 364, 15 Ill Dec 912, 374 NE2d 695--ss 20, 21 People v Wey (1976) 34 Ill App 3d 916, 341 NE2d 83--s 5[b] People v Witt (1928) 333 Ill 258, 164 NE 682--s 5[a] People v Woodruff (1981) 88 Ill 2d 10, 58 Ill Dec 869, 430 NE2d 1120--s 11

People v Young (1991, 1st Dist) 220 Ill App 3d 488, 163 Ill Dec 290, 581 NE2d 241--s 5[b] People v. Gooden, 296 Ill. 5[c] App. 3d 205, 230 Ill. Dec. 584, 694 N.E.2d 215--s

People v. Hillsman, 264 Ill.

Dec. 263, 769 N.E.2d 1100--s 11 Dec. 216, 773 N.E.2d 1286--ss 15[b], 17 Dec. 157, 748 N.E.2d 1227--s Dec. 674, 719

People v. Izquierdo-Flores, 266 Ill. 11 People v. Quick, 321 Ill.

App. 3d 392, 255 Ill.

*34644 People v. Rievia, 307 Ill. N.E.2d 1077--s 3

App. 3d 846, 241 Ill. INDIANA

Bentley v State (1984, Ind) 462 NE2d 58--s 8[b] Bently v State (1984, Ind) 462 NE2d 58--s 12

Bowers v. State, 717 N.E.2d 242--s 5[b] Bridwell v State (1994, Ind App) 640 NE2d 437--s 5[b] Fink v State (1984, Ind App) 469 NE2d 466--s 17 Gamblin v State (1991, Ind App) 568 NE2d 1040--s 3 Goudy v. State, 689 N.E.2d 686--s 4 Hornaday v State (1994, Ind App) 639 NE2d 303--s 3 Hughes v State (1985, Ind App) 473 NE2d 630--s 3 Johnson v State (1969) 252 Ind 79, 246 NE2d 181--s 5[a] State ex rel. Back v Starke Circuit Court (1979) 271 Ind 82, 390 NE2d 643--ss 8[b], 12 State ex rel. Wernke v Superior Court of Hendricks County (1976) 264 Ind 646, 348 NE2d 644--s 7[a] State v McCarty (1962) 243 Ind 361, 185 NE2d 732--s 15[b] State v. Erlewein, 755 N.E.2d 700--s 18 Sweeney v. State, 704 N.E.2d 86--s 5[b] IOWA State v Bige (1924) 198 Iowa 573, 198 NW 510--s 5[c] State v Fisher (1984, Iowa) 351 NW2d 798--s 11 State v Knox (1990, Iowa) 464 NW2d 445--s 6 State v Ruiz (1992, Iowa App) 496 NW2d 789--s 11 KANSAS Derby v Lackey (1988) 243 Kan 744, 763 P2d 614--s 5[b] State v Clovis (1993) 254 Kan 168, 864 P2d 687--s 11 State v Cuezze (1979) 225 Kan 274, 589 P2d 626--s 6 State v Fink (1975) 217 Kan 671, 538 P2d 1390--s 17 State v Goss (1989) 245 Kan 189, 777 P2d 781--s 5[c] State v Haislip (1983) 234 Kan 329, 673 P2d 1094--s 6 State v Hunt (1982) 8 Kan App 2d 162, 651 P2d 967--s 8[b, c] State v Jamison (1991) 248 Kan 302, 806 P2d 972--s 7[b]

State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891--s 8[b, c] State v Rowland (1952) 172 Kan 224, 239 P2d 949, 30 ALR2d 455--s 5[c] State v. Smallwood, 264 Kan. 69, 955 P.2d 1209--s 6 LOUISIANA State v Roberts (1973, La) 278 So 2d 56--s 16 MARYLAND

Baker v. State, 130 Md. App. 281, 745 A.2d 1142--s 5[c] Campbell v State (1991) 86 Md App 158, 586 A2d 32--s 5[c] Clark v State (1993) 97 Md App 381, 629 A2d 1322--s 11 Lee v State (1985) 61 Md App 169, 485 A2d 1014--s 11 Pearson v State (1982) 53 Md App 217, 452 A2d 1252--s 23 State v Glenn (1984) 299 Md 464, 474 A2d 509--s 7[b] MASSACHUSETTS Commonwealth v Conefrey (1991) 410 Mass 1, 570 NE2d 1384--s 5[a] *34645 MICHIGAN People v Wickham (1993) 200 Mich App 106, 503 NW2d 701--ss 3, 4 MINNESOTA State v Kasper (1987, Minn) 411 NW2d 182--s 8[a] State v Le Flohic (1914) 127 Minn 505, 150 NW 171--s 13 MISSISSIPPI Adams v State (1991, Miss) 583 So 2d 165--s 7[a] De La Beckwith v. State, 707 So. 2d 547--s 17 Forrest v. State, 782 So. 2d 1260--s 3 Fulgham v. State, 770 So. 2d 1021--s 4 Jamison v. State, 741 So. 2d 359--s 6 Mitchell v. State, 792 So. 2d 192--s 24[b] Moore v. State, 822 So. 2d 1100--s 15[a] Scott v. State, 829 So. 2d 688--s 4 State v. Shumpert, 723 So. 2d 1162--s 11 MISSOURI Fanning v State (1851) 14 Mo 386--s 4 State v Allen (1982, Mo App) 641 SW2d 471--s 4 State v Billings (1897) 140 Mo 193, 41 SW 778--s 4 State v Bolin (1983, Mo) 643 SW2d 806--s 19

State v Burlingame (1898) 146 Mo 207, 48 SW 72--s 4 State v Granger (1984, Mo App) 680 SW2d 258--s 5[a] State v Jackson (1982, Mo App) 645 SW2d 725--s 4 State v Mask (1983, Mo App) 655 SW2d 832--s 4 State v Morton (1969, Mo) 444 SW2d 420--s 4

State v Schyhart (1917, Mo) 199 SW 205--s 4 State v Wigger (1906) 196 Mo 90, 93 SW 390--s 4 MONTANA State v McGowan (1942) 113 Mont 591, 131 P2d 262--s 13 NEBRASKA State v Batiste (1989) 231 Neb 481, 437 NW2d 125--s 8[b] State v Costello (1977) 199 Neb 43, 256 NW2d 97--s 23 State v Dyer (1994) 245 Neb 385, 513 NW2d 316--s 5[b] State v Sumstine (1991) 239 Neb 707, 478 NW2d 240--s 5[b] State v. French, 262 Neb. 664, 633 N.W.2d 908--s 5[b] State v. French, 9 Neb. App. 866, 621 N.W.2d 548--s 5[b] State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322--s 4.5 State v. Karch, 263 Neb. 230, 639 N.W.2d 118--s 4 NEW HAMPSHIRE State v Adams (1991, NH) 585 A2d 853--ss 4, 11 NEW MEXICO State ex rel. Delgado v Stanley (1972) 83 NM 626, 495 P2d 1073--s 6 NEW YORK People v Armstrong (1992, Crim Ct) 588 NYS2d 104--s 3 People v Auslander (1990, 3d Dept) 168 App Div 2d 759, 563 NYS2d 912--s 3 People v Bryant (1988, 2d Dept) 139 App Div 2d 750, 527 NYS2d 500--s 3 People v Buckmon (1983) 120 Misc 2d 355, 465 NYS2d 823--s 3 People v Carswell (1983) 120 Misc 2d 274, 465 NYS2d 687--s 3 People v Chapman (1992, 2d Dept) 185 App Div 2d 892, 587 NYS2d 379--s 3 *34646 People v Cibro Oceana Terminal Corp. (1990) 148 Misc 2d 149, 559 NYS2d 782--s 7[b] People v Colon (1980, 1st Dept) 76 App Div 2d 805, 429 NYS2d 432--ss 3, 5[a] People v Cortes (1992) 80 NY2d 201, 590 NYS2d 9, 604 NE2d 71--s 5[a] People v Cullen (1979) 99 Misc 2d 646, 416 NYS2d 1011--s 22

People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736--ss 3, 21, 24[b] People v Dearstyne (1995, App Div, 3d Dept) 626 NYS2d 879--s 3 People v Dorian (1963, 2d Dept) 18 App Div 2d 1008, 238 NYS2d 633--s 3 People v Ferrara (1979) 102 Misc 2d 253, 423 NYS2d 370--s 18 People v Garcia (1995, City Crim Ct) 163 Misc 2d 862, 622 NYS2d 1019--ss 3, 5[a]

People v Garrison (1983) 122 Misc 2d 22, 469 NYS2d 867--s 3 People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781--ss 15[b], 24[a] People v Hall (1982, 4th Dept) 89 App Div 2d 788, 453 NYS2d 960--s 3 People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52--ss 3, 12 People v Jaswinder (1995, City Crim Ct) 165 Misc 2d 371, 632 NYS2d 923--s 5[a] People v Jenkins (1983, 2d Dept) 92 App Div 2d 549, 459 NYS2d 119--s 3 People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937, 406 NE2d 793--s 3 People v Lugo (1983) 122 Misc 2d 316, 470 NYS2d 525--s 3 People v McBride (1984) 126 Misc 2d 272, 482 NYS2d 203--s 3 People v Osgood (1980) 52 NY2d 37, 436 NYS2d 213, 417 NE2d 507--s 22 People v Overton (1976) 88 Misc 2d 531, 389 NYS2d 253--s 11 People v Pappas (1987, 2d Dept) 128 App Div 2d 556, 512 NYS2d 493--s 3 People v Pessoa (1987) 136 Misc 2d 148, 518 NYS2d 543--s 3 People v Ramkisson (1982) 114 Misc 2d 535, 452 NYS2d 127--s 22 People v Rashtak (1995, City Crim Ct) 165 Misc 2d 236, 629 NYS2d 946--s 5[a] People v Respress (1993, App Div, 4th Dept) 600 NYS2d 535--s 7[a] People v Rivera (1979) 98 Misc 2d 986, 414 NYS2d 972--s 3 People v Skinner (1995, NY App Div 3rd Dept) 621 NYS2d 733--s 21 People v Toro (1989, 1st Dept) 151 App Div 2d 142, 546 NYS2d 842--s 3 People v Traficante (1988, 3d Dept) 143 App Div 2d 443, 532 NYS2d 582--s 3 People v Vasquez (1986) 133 Misc 2d 963, 509 NYS2d 458--s 3 People v White (1982) 115 Misc 2d 800, 454 NYS2d 792--s 3 People v Zirpola (1982, 4th Dept) 88 App Div 2d 758, 451 NYS2d 483--s 3 People v. Anderson, 676 N.Y.S.2d 549--s 11 People v. Blancero, 736 N.Y.S.2d 50--s 5[c] People v. Cooper, 98 N.Y.2d 541, 750 N.Y.S.2d 258, 779 N.E.2d 1006--s 3 People v. Mascali, 189 Misc. 2d 549, 736 N.Y.S.2d 839--s 7[a] People v. Peluso, 192 Misc. 2d 33, 745 N.Y.S.2d 845--s 5[a]

*34647 People v. Ruparelia, 723 N.Y.S.2d 843--s 5[a] People v. Stone, 697 N.Y.S.2d 212--s 11 NORTH CAROLINA State v Boltinhouse (1980) 49 NC App 665, 272 SE2d 148--s 21 State v Freeman (1983) 308 NC 502, 302 SE2d 779--ss 5[c], 6

State v Gross (1984) 66 NC App 364, 311 SE2d 41--s 11 State v Koberlein (1983) 309 NC 601, 308 SE2d 442--ss 11, 20 State v Lamb (1987) 84 NC App 569, 353 SE2d 857--s 11 State v Lamb (1988) 321 NC 633, 365 SE2d 600--ss 5[b], 10 State v Mills (1983) 307 NC 504, 299 SE2d 203--s 7[b] State v Moore (1981) 51 NC App 26, 275 SE2d 257--s 7[b] State v Parker (1986) 316 NC 295, 341 SE2d 555--s 5[c] State v Simpson (1983) 60 NC App 436, 299 SE2d 257--s 5[c] State v Ward (1980) 46 NC App 200, 264 SE2d 737--s 13 OHIO Oregon, City of v 5[a] of Oregon v. Kohne, 117 Ohio App. 3d 179, 690 N.E.2d 66--s

State v Adams (1989) 43 Ohio St 3d 67, 538 NE2d 1025--s 3 State v Bonarrigo (1980) 62 Ohio St 2d 7, 16 Ohio Ops 3d 4, 402 NE2d 530--s 5[b] State v Broughton (1991) 62 Ohio St 3d 253, 581 NE2d 541--s 5[b] State v Cattee (1983) 14 Ohio App 3d 239, 14 Ohio BR 268, 470 NE2d 421--s 24[a] State v DePue (1994, Athens Co) 96 Ohio App 3d 513, 645 NE2d 745--s 3 State v Justice (1976) 49 Ohio App 2d 46, 3 Ohio Ops 3d 109, 358 NE2d 1382--s 22 State v Lyons (1978) 61 Ohio App 2d 228, 15 Ohio Ops 3d 367, 401 NE2d 452--s 15[a] State v Sauers (1977) 52 Ohio App 2d 113, 6 Ohio Ops 3d 87, 368 NE2d 334--s 24[a] State v Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759--s 5[a, b] State v. Myers, 97 Ohio St. 3d 335, 2002 -Ohio- 6658, 780 N.E.2d 186--ss 4, 5[c] Westlake v Cougill (1978) 56 Ohio St 2d 230, 10 Ohio Ops 3d 382, 383 NE2d 599--s 15[b] OKLAHOMA Bowie v State (1995, Okla Crim) 906 P2d 759--s 5[c] OREGON State v Kent (1971) 5 Or App 297, 484 P2d 1109--s 7[a]

State v. Hampton, 152 Or. App. 742, 954 P.2d 1267--s 5[c] State v. Waechter, 163 Or. App. 282, 986 P.2d 1281--s 3 PENNSYLVANIA Commonwealth v Ardolino (1982) 304 Pa Super 268, 450 A2d 674--s 7[a] Commonwealth v Bell (1976) 245 Pa Super 164, 369 A2d 345--s 17 Commonwealth v Braithwaite (1978) 253 Pa Super 447, 385 A2d 423--s 18 Commonwealth v Brocklehurst (1980) 491 Pa 151, 420 A2d 385--s 7[b]

Commonwealth v Cartagena (1978) 482 Pa 6, 393 A2d 350--s 21 Commonwealth v Davies (1985) 342 Pa Super 318, 492 A2d 1139--s 11 Commonwealth v De Marco (1984) 332 Pa Super 315, 481 A2d 632--s 7[c] *34648 Commonwealth v Finfrock (1978) 257 Pa Super 555, 391 A2d 621--s 15[a] Commonwealth v Frank (1979) 263 Pa Super 452, 398 A2d 663--s 9 Commonwealth v Garbett (1978) 256 Pa Super 488, 390 A2d 208--s 24[b] Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447--ss 4, 15[a], 21 Commonwealth v Genovese (1981) 493 Pa 65, 425 A2d 367--s 21 Commonwealth v Gunter (1982) 299 Pa Super 432, 445 A2d 831--s 17 Commonwealth v Horner (1982) 497 Pa 565, 442 A2d 682--s 21 Commonwealth v Knox (1984) 330 Pa Super 136, 479 A2d 1--s 21 Commonwealth v Leatherbury (1982) 499 Pa 450, 453 A2d 957--s 20 Commonwealth v Lowe (1978) 255 Pa Super 78, 386 A2d 144--s 20 Commonwealth v Mumich (1976) 239 Pa Super 209, 361 A2d 359--s 19 Commonwealth v Navarro (1982) 499 Pa 279, 453 A2d 308--s 8[b] Commonwealth v Poindexter (1982) 301 Pa Super 454, 447 A2d 1387--s 21 Commonwealth v Powell (1978) 257 Pa Super 522, 390 A2d 1360--s 22 Commonwealth v Sadler (1982) 301 Pa Super 228, 447 A2d 625--s 17 Commonwealth v Satchell (1982) 306 Pa Super 364, 452 A2d 768--s 17 Commonwealth v Sires (1981) 284 Pa Super 50, 424 A2d 1386--s 5[a] Commonwealth v Weitkamp (1978) 255 Pa Super 305, 386 A2d 1014--s 20 Commonwealth v Whitaker (1976) 467 Pa 436, 359 A2d 174--s 5[a] Commonwealth v Whiting (1985, Pa) 500 A2d 806--s 5[c] SOUTH CAROLINA Hunter v Patrick Constr. Co. (1986) 289 SC 46, 344 SE2d 613--s 21 SOUTH DAKOTA State v Tiedeman (1988, SD) 433 NW2d 237--s 12 State v. Karlen, 1999 SD 12, 589 N.W.2d 594--s 4

TEXAS Armstead v State (1984, Tex App El Paso) 677 SW2d 266--ss 5[c], 24[a] Carr v State (1984, Tex Crim) 733 SW2d 149--s 11 Cockrell v State (1982, Tex App Fort Worth) 632 SW2d 664--s 5[b] Cole v State (1983, Tex Crim) 650 SW2d 818--s 5[b]

Durbin v State (1986, Tex App El Paso) 716 SW2d 131--ss 11, 17 Durrough v State (1981, Tex Crim) 620 SW2d 134--s 5[b] Garcia v State (1984, Tex App Corpus Christi) 673 SW2d 696--s 7[a, b] Griffith v. State, 976 S.W.2d 686--s 5[b] Johnson v State (1982, Tex App Dallas) 632 SW2d 658--s 5[b] Presley v State (1985, Tex App Fort Worth) 686 SW2d 764--s 11 Santibanez v State (1986, Tex Crim) 717 SW2d 326--s 7[a] Thibodeaux v State (1987, Tex App Houston (14th Dist)) 726 SW2d 601--s 11 Turner v State (1982, Tex App Houston (1st Dist)) 646 SW2d 485--s 5[a] Vanderbilt v State (1981, Tex Crim) 629 SW2d 709--s 5[b] *34649 Washington v State (1984, Tex App Dallas) 677 SW2d 142--ss 5[b], 11 VERMONT State v Snide (1984) 144 Vt 436, 479 A2d 139--s 8[b, c] VIRGINIA Ashby v. Com., 33 Va. App. 540, 535 S.E.2d 182--ss 5[c], 6 Brooks v Peyton (1969) 210 Va 318, 171 SE2d 243--s 4 Dulin v Commonwealth (1895) 91 Va 718, 20 SE 821--s 24[a] Harris v. Com., 520 S.E.2d 825--s 5[b] Jackson v. Com., 255 Va. 625, 499 S.E.2d 538--s 17 Mealy v Commonwealth (1952) 193 Va 216, 68 SE2d 507--s 12 Miller v Commonwealth (1977) 217 Va 929, 234 SE2d 269--s 4 Presley v Commonwealth (1986) 2 Va App 348, 344 SE2d 195--ss 4, 19 Riddick v Commonwealth (1996) 22 Va App 136, 468 SE2d 135--s 4 Willis v. Com., 556 S.E.2d 60--s 11 WASHINGTON State v Anderson (1980) 94 Wash 2d 176, 616 P2d 612--s 6 State v Estabrook (1993) 68 Wash App 309, 842 P2d 1001--s 5[b] State v Hansen (1894) 10 Wash 235, 38 P 1023--s 5[c]

State v Matlock (1980) 27 Wash App 152, 616 P2d 684--s 19 State v Peterson (1978) 90 Wash 2d 423, 585 P2d 66--s 5[a] State v Wieman (1978) 19 Wash App 641, 577 P2d 154--ss 5[b], 22 WEST VIRGINIA State ex rel. Farley v Kramer (1969) 153 W Va 159, 169 SE2d 106--s 15[a]

State v Crawford (1919) 83 W Va 556, 98 SE 615--s 5[a] State v McIntosh (1918) 82 W Va 483, 96 SE 79--s 12 WYOMING Alicea v. State, 13 P.3d 693--s 4 Wehr v State (1992, Wyo) 841 P2d 104--s 8[b] ARTICLE I. Preliminary Matters s 1. Introduction [a] Scope

This annotation [FN1] collects and discusses the state and federal cases in which the courts have considered what effect the dismissal, nolle prosequi, withdrawal, abandonment, supersession, or other termination of an indictment, information, complaint, or other accusatory instrument has in determining when a statute providing for a period of time within which a defendant must be brought to trial starts to run in relation to a subsequent accusatory instrument charging the defendant with the same crime, or another crime based on the same criminal conduct, which gave rise to the terminated accusatory instrument. This annotation deals with cases in which the termination of the accusatory instrument took place before the defendant was brought to trial; therefore, cases involving a mistrial, a granting of a motion for a new trial, or a reversal of a conviction on appeal and remand for a new trial are excluded. [FN2] Since relevant statutes are included only to the extent that they are reflected in the reported cases within the scope of this annotation, the reader is advised to consult the latest enactments of pertinent jurisdictions. [b] Related matters

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 ALR4th 554. Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information. 44 ALR4th 401. Waiver of right to counsel by insistence upon speedy trial in state criminal case. 19 ALR4th 1299. *34650 Continuances at instance of state public defender or appointed counsel over defendant's objections as excuse for denial of speedy trial. 16 ALR4th 1283.

Adequacy of defense counsel's representation of criminal client regarding speedy trial and related matters. 6 ALR4th 1208. Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial. 85 ALR2d 980. Waiver or loss of accused's right to speedy trial. 57 ALR2d 302. When may dismissal for violation of Speedy Trial Act (18 U.S.C.A. ss 3161-3174) be with prejudice to government's right to reinstate action. 98 ALR Fed 660. Effect on operation of Speedy Trial Act (18 U.S.C.A. ss 3161 indictment returned by grand jury whose term has expired. 64 ALR Fed 916. et seq.) of

When is federal court justified, under Rule 48(a) of the Federal Rules of Criminal Procedure, in denying government leave to dismiss criminal charges. 48 ALR Fed 635. Excludable periods of delay under Speedy Trial Act (18 U.S.C.A. ss 3161-3174). 46 ALR Fed 358. Accused's right to speedy trial under Federal Constitution--Supreme Court cases. 71 L Ed 2d 983. s 2 Summary and comment [a] Generally

Under the provisions of the Sixth Amendment to the United States Constitution and of the constitutions of most of the states, an accused in a criminal proceeding is guaranteed the right to a speedy trial. [FN3] In an effort to clarify this constitutional guarantee, the federal government and a number of the state governments have enacted statutes and rules that specify the period of time within which an accused must be brought to trial after being arrested or charged with a crime. In computing the time within which the trial must be held, these statutes and rules variously mark the starting point of the time period as the filing or service of the accusatory instrument, the accused's arrest for the crime, or the accused's arraignment under the accusatory instrument. [FN4] If an accused is eventually brought to trial under the original accusatory instrument, there should be little difficulty in establishing when the statutory speedy trial period began to run on that instrument. However, situations often arise in which the original accusatory instrument is for some reason dismissed or otherwise terminated and a new accusatory instrument charging the same crime, or another crime based on the same criminal activity, is brought to replace the original instrument. The question then arises as to when the statutory time period began to run in relation to that subsequent accusatory instrument. The answer to this question is often crucial in determining whether the accused received a speedy trial within the statutory requirements. The courts that have considered this problem have all reached one of three alternative conclusions ( s s 3-24, infra). The first is that the statutory speedy trial period that began to run under the original accusatory instrument continued to run despite the termination of that instrument and its replacement with a subsequent instrument. The second solution is that, while the speedy trial period began under the initial instrument, the statutory period ceased to run, or was tolled, at the time of the termination of the prior accusatory instrument and only began to run again with the filing of the subsequent accusatory instrument or the accused's arrest or arraignment thereunder. [FN5] The third and final answer to the question of when the speedy trial period begins to run in relation to the subsequent accusatory instrument is that the termination of the prior accusatory instrument concluded prosecution of those charges and the bringing of a new accusatory instrument started an entirely new prosecution in which the speedy trial period commenced to run anew as if there had never been a prior prosecution for the same offense. In at least one jurisdiction, the courts have concluded as a general rule that the speedy trial period is to be computed from the filing of the original accusatory instrument and is neither tolled nor started anew by the termination of the original instrument and its replacement with a subsequent instrument charging the same crime or based on the same criminal activity ( s 3, infra). Other courts have relied on the fact that the termination of the prior accusatory instrument was caused by or was attributable to the prosecution in reaching the conclusion that the speedy trial period was not interrupted by the termination of the prior instrument ( s 5[a], infra). A similar conclusion has been reached in a case

where the prosecution obtained a subsequent accusatory instrument based on additional evidence ( s 6, infra) and in cases where the prosecution disposed of the prior instrument on the ground that it was defective or invalid ( s 7[a], infra) or on the ground that one of its potential witnesses was unavailable ( s 8[a], infra). The speedy trial period has also been deemed to have continued to run where the defendant obtained the dismissal of the prior accusatory instrument and the subsequent instrument was not filed until after the speedy trial period expired ( s 12, infra), where the defendant's motion resulted in the quashal of a defective accusatory instrument ( s 15[b], infra), and where a new accusatory instrument was filed after the defendant's payment of a traffic fine resulted in termination of a prior accusatory instrument based on the same episode ( s 18, infra). In those cases in which the prior accusatory instrument was dismissed by the court for failure of the state to prosecute, the speedy trial period has likewise been computed from the time of the original accusatory instrument ( s 22, infra). The same result has been reached where the prior accusatory instrument was dismissed on the ground of an improperly scheduled preliminary hearing ( s 24[b], infra). *34651 The running of the speedy trial statutes has been held to have been tolled during the time between the termination of the prior accusatory instrument and the applicable starting point under the subsequent instrument where the prior accusatory instrument was terminated by the prosecution ( s 5[b], infra), the termination by the prosecution was due to the unavailability of a state witness ( s 8[b], infra) or a lack of evidence sufficient to convict ( s 11, infra), the prior accusatory instrument was terminated on the defendant's motion on the ground that the prior instrument was invalid ( s 15[b], infra), or the prior instrument was dismissed by the court due to a defect in the instrument ( s 19, infra), the failure of the complaining witness to appear at a preliminary hearing ( s 20, infra), lack of prosecution by the state ( s 22, infra), or prosecutorial misconduct before the grand jury ( s 24[b], infra). Some jurisdictions have adopted a general rule that the statutory speedy trial period begins to run anew from the time of the subsequent accusatory instrument and that the time expended under prior accusatory instruments is to be disregarded in computing the time elapsed for speedy trial purposes ( s 4, infra). In other cases the courts have likewise held that the statutory speedy trial period started over again from the time of the applicable proceedings under the subsequent accusatory instrument ( s s 5[c], 12, 18, infra). The same conclusion was reached in cases in which the prosecution terminated the prior accusatory instrument and the subsequent accusatory instrument was based on new evidence or additional facts ( s 6, infra). In other cases in which the prior accusatory instruments were allegedly defective or invalid, the courts held that the speedy trial periods ran anew under the subsequent accusatory instruments ( s s 7[b], 15[a], 19, infra). In cases in which the prior accusatory instruments were terminated after prosecution witnesses became unavailable to testify, the courts held that the speedy trial periods began to run anew from the time of the subsequent accusatory instruments ( s s 8[c], 20, infra). In situations in which the prior and

subsequent accusatory instruments were filed in different courts, the courts have held that the subsequent accusatory instrument started the speedy trial period running anew ( s s 9, 23, infra). The termination of the prior accusatory instrument with leave of the prosecution to reinstate the charges has been held to commence the running of the speedy trial period with the subsequent accusatory instrument ( s 10, infra). Likewise, in cases where the prior accusatory instrument was terminated on speedy trial grounds, the courts have held that the speedy trial period ran anew under the subsequent accusatory instrument ( s 13, infra). In cases in which the prior accusatory instruments were terminated on lack of probable cause or lack of prima facie case grounds, the

speedy trial period was held to run anew with the subsequent accusatory instrument ( s s 14, 21, infra). The speedy trial period was held to run anew in cases in which the prior accusatory instrument charged the accused with a felony and the subsequent accusatory instrument charged the accused with a misdemeanor ( s 16, infra). A new speedy trial period has also been held to commence with a subsequent accusatory instrument in cases in which the terminations of the prior accusatory instruments were accompanied by factors other than those noted above and the termination of the prior accusatory instrument was attributable to the prosecution ( s 11, infra), the defendant ( s 17, infra), or neither of the parties ( s 24[a], infra). The dismissal of an indictment without prejudice forces the government to obtain a new indictment if the government decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitations grounds. United States v Taylor (1988, US) 101 L Ed 2d 297, 108 S Ct 2413, on remand (CA9) 854 F2d 1548. [b] Practice pointers

Counsel should be aware that a waiver of a defendant's statutory speedy trial rights [FN6] given while the original or prior accusatory instrument was in effect may also be applied to a subsequent accusatory instrument, thereby taking the subsequent accusatory instrument out of the operation of the speedy trial statute and requiring the defendant or counsel to make a demand for a speedy trial under a subsequent accusatory instrument in order to reactivate the defendant's statutory right to a speedy trial. Counsel should also be aware that the statutory speedy trial rights of his client may be reinvoked by either a motion for a speedy trial or a motion for a discharge under the subsequent accusatory instrument. [FN7] *34652 II. General principles s 3. View that statutory speedy trial period continues to run despite termination of prior accusatory instrument The following cases explicitly support the view that the speedy trial period commences with the filing of the first accusatory instrument and is not interrupted or tolled by the termination of that instrument and the filing of a subsequent instrument charging the same crimes or other crimes based on the same criminal activity. US--United States v Vlahov (1995, ND Cal) 884 F Supp 354. Fla--Dorian v State (1994, Fla) 642 So 2d 1359, 19 FLW S 511 (termination by entry of nolle prosequi); Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687, 20 FLW D 2573 and related proceeding (Fla App -2) 659 So 2d 399, 20 FLW D 1685 and related proceeding (Fla App -2), 20 FLW D 2545. Ill--People v Howard (1990, 5th Dist) 205 Ill App 3d 702, 151 Ill Dec 113, 563 NE2d 1219, app den (Ill) 156 Ill Dec 565, 571 NE2d 152; People v. Rievia, 307 Ill. App. 3d 846, 241 Ill. Dec. 674, 719 N.E.2d 1077

(1st Dist. 1999). Ind--Hughes v State (1985, Ind App) 473 NE2d 630, later proceeding (Ind App) 508 NE2d 1289; Gamblin v State (1991, Ind App) 568 NE2d 1040; Hornaday v State (1994, Ind App) 639 NE2d 303, reh den (Oct 5, 1994) and transfer den (Nov 30, 1994). Mich--People v Wickham (1993) 200 Mich App 106, 503 NW2d 701 (if prosecution voluntarily dismissed charge). NY--People v Pappas (1987, 2d Dept) 128 App Div 2d 556, 512 NYS2d 493; People v Bryant (1988, 2d Dept) 139 App Div 2d 750, 527 NYS2d 500, later proceeding (2d Dept) 143 App Div 2d 354, 532 NYS2d 500; People v Traficante (1988, 3d Dept) 143 App Div 2d 443, 532 NYS2d 582, later proceeding (3d Dept) 147 App Div 2d 843, 538 NYS2d 331; People v Toro (1989, 1st Dept) 151 App Div 2d 142, 546 NYS2d 842, app dismd without op 75 NY2d 818, 552 NYS2d 568, 551 NE2d 1246; People v Auslander (1990, 3d Dept) 168 App Div 2d 759, 563 NYS2d 912; People v Chapman (1992, 2d Dept) 185 App Div 2d 892, 587 NYS2d 379, app withdrawn 80 NY2d 1025; People v McBride (1984) 126 Misc 2d 272, 482 NYS2d 203; People v Garcia (1995, City Crim Ct) 163 Misc 2d 862, 622 NYS2d 1019; People v Armstrong (1992, Crim Ct) 588 NYS2d 104; People v Dearstyne (1995, App Div, 3d Dept) 626 NYS2d 879. Ohio--United States v Roy (1991, SD Ohio) 791 F Supp 179 (where all charges in both indictments relate to same alleged conduct); State v DePue (1994, Athens Co) 96 Ohio App 3d 513, 645 NE2d 745. Where the defendant is not brought to trial on a superseding indictment within seventy nonexcludable days of the later of the defendant's first appearance or the filing of the original indictment, the counts in the superseding indictment that were contained in the original indictment, or those that the double jeopardy clause requires to be joined with them, are subject to dismissal under Speedy Trial Act. 18 U.S.C.A. s 3161(c)(1). U.S. v. Alford, 142 F.3d 825 (5th Cir. 1998), reh'g denied, (July 14, 1998) and cert. denied, 119 S. Ct. 514 (U.S. 1998). Superseding indictment, which included four new charges as well as three original ones, did not affect running of speedy trial period with respect to the three original charges. United States v Thomas (1986, CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57 AFTR 2d 86-1215, cert den (US) 479 US 853, 93 L Ed 2d 121, 107 S Ct 187, later proceeding TC Memo 1988-454, 56 TCM 275. *34653 Superseding indictment restating or correcting original charges does not restart the 70-day statutory time period for original charges under provision of Speedy Trial Act, requiring that defendant be brought to trial within 70 days after defendant's initial appearance. U.S.C.A. Const. Amend. 6; 18 U.S.C.A. s 3161(a). U.S. v. Hemmings, 258 F.3d 587 (7th Cir. 2001).

There was no violation of the Speedy Trial Act when allegation that defendant possessed bullets and shotgun shells was introduced in the complaint and omitted from the original indictment, which mentioned only a revolver , but superseding indictment for being a felon in possession of a firearm or ammunition, filed more than 30 days after arrest, added the bullets and shells, as the Government asserted the same, single charge in the complaint and the original indictment as in the superseding indictment, though the original indictment omitted a factual allegation supporting the charge in the complaint; there was no charge omitted from the original indictment that was included in the superseding indictment. 18 U.S.C.A. ss 922(g)(1), 3161(b), 3162(a)(1). U.S. v. Carrasco, 257 F.3d 1045 (9th Cir. 2001). The state's filing of a nolle prosequi does not toll the running of the speedy trial period; however, charges may be refiled if the speedy trial period has not run. State v. Jackson, 784 So. 2d 1229 (Fla. Dist. Ct. App. 1st Dist. 2001). There can be no recapture period when the state seeks to avoid the time periods set forth in the speedy trial rule by affirmatively abandoning charges against the defendant and then refiling charges after expiration of the applicable speedy trial period. West's F.S.A. RCrP Rule 3.191(a). Williams v. State, 788 So. 2d 1123 (Fla. Dist. Ct. App. 1st Dist. 2001). Statutory time limitation of six months within which to provide defendant with speedy trial is not renewed, absent a formal dismissal and refiling of the original charges. I.C. s 19-3501. State v. McKeeth, 38 P.3d 1275 (Idaho Ct. App. 2001), review denied, (Jan. 28, 2002). Date that new indictment was entered, rather than date that original indictment was entered, was the critical date for statutory speedy trial purposes, where defendant did not place in the record the date original indictment was entered. West's A.M.C. s 99-17-1. Forrest v. State, 782 So. 2d 1260 (Miss. Ct. App. 2001). People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937, 406 NE2d 793; People v Colon (1980, 1st Dept) 76 App Div 2d 805, 429 NYS2d 432; People v Zirpola (1982, 4th Dept) 88 App Div 2d 758, 451 NYS2d 483, mod on other grounds 57 NY2d 706, 454 NYS2d 702, 440 NE2d 787; People v Hall (1982, 4th Dept) 89 App Div 2d 788, 453 NYS2d 960; People v Jenkins (1983, 2d Dept) 92 App Div 2d 549, 459 NYS2d 119, later app (2d Dept) 104 App Div 2d 563, 479 NYS2d 270; People v Rivera (1979) 98 Misc 2d 986, 414 NYS2d 972; People v White (1982) 115 Misc 2d 800, 454 NYS2d 792; People v Carswell (1983) 120 Misc 2d 274, 465 NYS2d 687; People v Buckmon (1983) 120 Misc 2d 355, 465 NYS2d 823; People v Garrison (1983) 122 Misc 2d 22, 469 NYS2d 867 (misdemeanor complaint replaced with information charging violation); People v Lugo (1983) 122 Misc 2d 316, 470 NYS2d 525. Although a different result was reached in an earlier New York case, [FN8] later New York cases have held that the statutory speedy trial period is computed from the original accusatory instrument in the

criminal action and is neither tolled nor started anew by the termination of the original instrument and the bringing of a subsequent accusatory instrument. Thus, affirming a conviction for third-degree attempted robbery, the court, in People v Lomax (1980) 50 NY2d 351, 428 NYS2d 937, 406 NE2d 793, held that the time periods under the speedy trial statute began to run from the date on which the defendant was first arraigned and the first accusatory instrument in the criminal proceeding was filed where that instrument was subsequently dismissed and replaced with a new indictment charging the same crimes. Interpreting the applicable speedy trial statute, the court stated that there could be only one criminal action for each set of criminal charges brought against a particular defendant, even though the original accusatory instrument was replaced or superseded during the course of the action, and that the speedy trial statute required that the time period be computed from the original charge. However, the court concluded that the defendant was not entitled to a dismissal even though he was not brought to trial within 6 months of the filing of the original indictment where the defendant failed to show the extent to which the prosecution's failure to be ready within the statutory time period was attributable to delays caused by the defendant's prior motions. The court noted that a substantial portion of the delay was occasioned by motions made in the defendant's behalf. *34654 Operative readiness period under speedy trial statute was 90 days, rather than 60 days, measured from filing date of information, where complaint charging felonies and class A misdemeanors was replaced, three weeks after it was filed, by information charging only the remaining class A misdemeanors, and months later, immediately prior to trial, the trial court granted the People's motion to reduce the charges to class B misdemeanors; the subsequent reduction to class B misdemeanors was not among the exceptions enumerated in speedy trial statute provision listing specific situations effectively altering the date a criminal action is deemed to have commenced, and thus, it had no effect on the readiness equation. McKinney's CPL s 30.30, subds. 1, 5(c). People v. Cooper, 98 N.Y.2d 541, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002). Sixty-day readiness period for misdemeanors, which was applicable to instrument filed as felony complaint but converted to misdemeanor complaint on October 2, was also applicable to indictment filed on January 22, following dismissal of misdemeanor complaint on January 9 pursuant to prosecution motion, even though January 22 indictment charged original felony offense once again, since 61 days chargeable to prosecution had passed, and to permit filing of January 22 indictment to resurrect six-month readiness period applicable to felonies would have flouted purposes of speedy trial statute. People v Vasquez (1986) 133 Misc 2d 963, 509 NYS2d 458. Prosecution for misdemeanor third degree assault, superseding felony second degree assault charge dismissed without prejudice by presiding judge, fell within statute requiring prosecution to bring case to trial either 90 days from filing of new information or balance of six months allotted to original felony, whichever was shorter. People v Pessoa (1987) 136 Misc 2d 148, 518 NYS2d 543.

See People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736,

s 21.

See People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52 and app withdrawn 84 NY2d 868, s 12. When new and additional charges arise from same facts as did original charge and state knew of such facts at time of original indictment, time within which trial is to begin on additional charge is subject to same statutory limitations period that is applied to original charge. State v Adams (1989) 43 Ohio St 3d 67, 538 NE2d 1025. State cannot use a process of dismissal and reindictment to avoid its obligation, under prisoner speedy trial statute, to bring the inmate to trial within 90 days of when the district attorney receives a trial demand. ORS 135.763. State v. Waechter, 163 Or. App. 282, 986 P.2d 1281 (1999). s 4. View that statutory speedy trial period starts anew under subsequent accusatory instrument The following cases explicitly support the view that the time expired under prior accusatory instruments is not counted in computing the speedy trial period and that the speedy trial statute applies only to the last accusatory instrument charging the same crimes or based on the same criminal conduct as the prior accusatory instruments. US--U.S. v. Martinez, 47 F. Supp. 2d 906 (M.D. Tenn. 1999); United States v Schoeneman (1995, ND Ill) 893 F Supp 820 (different charges); United States v Bergouignan (1985, CA11 Fla) 764 F2d 1503, later app (CA11 Fla) 821 F2d 1498, reh den, en banc (CA11 Fla) 828 F2d 775 and cert den (US) 98 L Ed 2d 864, 108 S Ct 778; U.S. v. Goodman, 36 F. Supp. 2d 947 (M.D. Ga. 1999). Ark--Thornton v State (1994) 317 Ark 257, 878 SW2d 378. Colo--Meehan v County Court (1988, Colo App) 762 P2d 725; People ex rel. C.O. (1994, Colo App) 870 P2d 1266. Ind--Goudy v. State, 689 N.E.2d 686 (Ind. 1997), reh'g denied, (Mar. 18, 1998). Mich--People v Wickham (1993) 200 Mich App 106, 503 NW2d 701 (if charge dismissed on motion of defendant). *34655 NH--State v Adams (1991, NH) 585 A2d 853. Va--Riddick v Commonwealth (1996) 22 Va App 136, 468 SE2d 135. Mandate dismissing first indictment without prejudice for violation of the Speedy Trial Act was not "the action occasioning the trial" on a new indictment, so as to require trial on the new indictment within 70 days of the mandate, and the speedy trial clock for the second trial began to run on the later of the filing date of the new indictment or the defendant's first appearance before a judicial officer with respect to that indictment. 18 U.S.C.A. s 3161(c). U.S. v. Barnes, 251 F.3d 251 (1st Cir. 2001).

Seventy day limit of the Speedy Trial Act began to run upon order setting case for retrial, not declaration of a mistrial, and thus 144-day delay between declaration of mistrial and scheduling of retrial did not violate defendant's statutory right to speedy trial. 18 U.S.C.A. s 3161(e). U.S. v. Harley, 39 Fed. Appx. 789 (3d Cir. 2002). The Speedy Trial Act is offense specific; if a subsequent indictment or information charges a defendant with a new offense, the subsequent filing starts a new, independent speedy trial period. 18 U.S.C.A. ss 3161 et seq. U.S. v. Robinette, 177 F. Supp. 2d 279 (D. Del. 2001). See United States v May (1985, CA6 Mich) 771 F2d 980, s 6.

See United States v Thomas (1986, CA7 Ill) 788 F2d 1250, 86-1 USTC p 9354, 57 AFTR 2d 86-1215, cert den (US) 93 L Ed 2d 121, 107 S Ct 187, later proceeding TC Memo 1988-454, 56 TCM 275, s 3. A speedy trial demand is effective as to repeated charges in re-indictments. O.C.G.A. s 17-7-170(a). Banks v. State, 251 Ga. App. 421, 554 S.E.2d 500 (2001). Statutory 70-day speedy trial clock is stopped if charges against defendant are dismissed, but will begin running again where it left off if state refiles charges. Rules Crim. Proc., Rule 4(B)(1). Goudy v. State, 689 N.E.2d 686 (Ind. 1997), reh'g denied, (Mar. 18, 1998). Where a defendant is reindicted for the same crime, rule requiring trial within 270 days of arraignment does not begin to run until the arraignment on the reindictment. West's A.M.C. s 99-17-1. Fulgham v. State, 770 So. 2d 1021 (Miss. Ct. App. 2000). Court of Appeals could consider only passage of time from first trial to retrial for purposes of defendant's speedy trial claim since statutory speedy trial requirement that trial begin within 270 days of arraignment was satisfied by defendant's first trial, even though first trial ended in mistrial. West's A.M.C. s 99-17-1. Scott v. State, 829 So. 2d 688 (Miss. Ct. App. 2002).

Fanning v State (1851) 14 Mo 386; State v Billings (1897) 140 Mo 193, 41 SW 778; State v Burlingame (1898) 146 Mo 207, 48 SW 72; State v Wigger (1906) 196 Mo 90, 93 SW 390; State v Schyhart (1917, Mo) 199 SW 205; State v Morton (1969, Mo) 444 SW2d 420; State v Allen (1982, Mo App) 641 SW2d 471; State v Jackson (1982, Mo App) 645 SW2d 725; State v Mask (1983, Mo App) 655 SW2d 832; Brooks v Peyton (1969) 210 Va 318, 171 SE2d 243; Miller v Commonwealth (1977) 217 Va 929, 234 SE2d 269, cert den 434 US 1016, 54 L Ed 2d 762, 98 S Ct 735. Thus, in State v Burlingame (1898) 146 Mo 207, 48 SW 72, the court pointed out that the state had the right to file one or more new indictments for the offense charged against defendant; that the statute declares that the one first found shall be deemed suspended by the second, and shall be quashed; that the finding of the last indictment was, to all intents and purposes, the presentation of a new case against defendant; and that under the statute there must have been two continuances of the case by the state under this indictment to have entitled defendant to be discharged. *34656 Time chargeable to the State under the speedy trial act ceases, or is tolled, during the interval between the State's dismissal of the initial complaint in the county court and the refiling of a complaint charging the defendant with the same crime alleged in the previous, but dismissed, complaint. Neb. Rev. St. s 29-1207(1). State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002). The period between a dismissal of charges without prejudice and the filing of a subsequent indictment premised upon the same facts is not counted for purposes of computing the speedy trial time period. R.C. ss 2945.71 et seq. State v. Myers, 97 Ohio St. 3d 335, 2002 -Ohio- 6658, 780 N.E.2d 186 (2002). See Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447, s 21.

The 180-day speedy trial period commences when the defendant has first appeared on reindictment if the earlier indictment was properly dismissed by a competent judicial officer, and the record does not reveal evidence of a prosecutorial attempt to circumvent the 180-day rule. SDCL 23A-44-5.1. State v. Karlen, 1999 SD 12, 589 N.W.2d 594 (S.D. 1999). Likewise, in Brooks v Peyton (1969) 210 Va 318, 171 SE2d 243, the court stated that where an original indictment is supplanted by a second indictment, the terms contemplated by the speedy trial statute are to be counted from the time of the second indictment. Affirming the dismissal of a petition for a writ of habeas corpus that alleged that the petitioner was denied the effective assistance of counsel by his attorney's failure to move to quash the second indictment on speedy trial grounds, the court stated that there were no valid grounds on which to base a motion to quash since the state was not barred from obtaining the second indictment, which properly charged the offense of robbery. See Presley v Commonwealth (1986) 2 Va App 348, 344 SE2d 195, s 19.

Refiling of same charges, after prosecution dismissed information with leave of the court, caused the 120 day speedy trial rule to begin to run anew. Rules Crim. Proc., Rule 48. Alicea v. State, 13 P.3d 693 (Wyo. 2000). s 4.5. View that statutory speedy trial period is tolled during time between termination of initial accusatory instrument and filing of subsequent accusatory statement The following case authority held that the applicable statutory speedy trial period is tolled between the time of termination of an initial accusatory statement and the filing of a subsequent accusatory statement. The time chargeable against the State under state's speedy trial act commences with the filing of an initial information against a defendant; the time chargeable to the State ceases, or is tolled, during the interval between the State's dismissal of the initial information and the refiling of an information charging the defendant with the same crime alleged in the previous, but dismissed, information. State v. Hutton, 11 Neb. App. 286, 648 N.W.2d 322 (2002). III. Termination of prior accusatory instrument attributable to prosecution s 5. Generally [a] Held to continue to run

In the following cases wherein the termination of the prior accusatory instrument was attributable in some way to the prosecution, the courts held that the applicable speedy trial periods were not interrupted or tolled by such termination in relation to a subsequent accusatory instrument charging the same crime or another crime based on the same criminal activity. See also United States v Mitchell (1983, CA1 Mass) 723 F2d 1040 (disagreed with on other grounds United States v Mastrangelo (CA11 Fla) 733 F2d 793), where the court, affirming a conviction for conspiracy to possess stolen mail and related offenses, noted that it was the date of the original indictment, not the date of the superseding indictment, that started the speedy trial clock running where the only change from the original indictment was to state the actual names of two codefendants listed under fictitious names in the first indictment.

Affirming convictions on drug conspiracy charges, the court, in United States v Novak (1983, CA3 Pa) 715 F2d 810, cert den (US) 79 L Ed 2d 694, 104 S Ct 1293 and (disagreed with on other grounds United States v Mastrangelo (CA11 Fla) 733 F2d 793) and (disagreed with on other grounds United States v Henderson (CA9 Cal) 746 F2d 619), held that the speedy trial period ran from the initial indictment where the conspiracy count in the superseding indictment charged all of the defendants charged in the conspiracy count of the original indictment, and the two conspiracy counts alleged the same locus and were supported by some of the same overt acts. The original indictment charged the defendants and two others with conspiracy to possess with intent to distribute a quantity of narcotics. A superseding indictment was subsequently filed which joined those defendants and six other defendants in an enlarged conspiracy and various related substantive offenses. The court stated that whenever a court determined from the face of the indictment that a superseding indictment charged an offense that was the same as, or required to be joined with, an offense charged in the original indictment within the meaning of the Double Jeopardy Clause, trial on the offense in the superseding indictment must be commenced within the time limitation for trial applicable to the original indictment. However, the court concluded that the defendants were not entitled to dismissal of the charges where more than 40 days of the 110 days between the filing of the original indictment and the motions to dismiss were excludable as delays caused by pretrial motions under the Speedy Trial Act (18 U.S.C.A. s 3161(h)(1)(F)), thus bringing the case within the 70-day period mandated by the Act (18 U.S.C.A. s 3161(c)(1)). *34657 Denying the defendants' motions to dismiss indictments, the court, in United States v Bergdoll (1976, DC Del) 412 F Supp 1308, held that the speedy trial period provided by the Speedy Trial Act (18 U.S.C.A. s 3161(c)) ran from the date of the original indictments where the superseding indictments did not alter the substantive offenses charged in the initial indictments. The original indictments charged 24 of the 26 defendants with crimes related to a drug conspiracy. The government subsequently obtained superseding indictments that charged all 26 of the present defendants. The court found that the changes in the superseding indictments, such as the reduction of the number of indictments by joinder of defendants and the addition of two previously unindicted individuals, did not alter the speedy trial rights of the defendants and that to decide otherwise would permit the government to defeat the defendants' speedy trial rights by the mere charade of new indictments. However, the court concluded that the delays prior to trial did not entitle the defendants to dismissal of the indictments. Filing of superseding indictment did not affect speedy trial clock for offenses charged in original indictment or any offense required to be joined with original offenses; with respect to new charges added to original ones in superseding indictment, motions pending on original charges tolled running of speedy trial clock, regardless of when speedy trial clock began to run on new charges themselves, since superseding indictment had not mooted pending motions. United

States v Gonzales (1990, CA5 Tex) 897 F2d 1312. Superseding indictment would be dismissed without prejudice where defendant was not tried within 70 days after original indictment was filed in violation of 18 U.S.C.A. s 3161(c)(1). Filing of superseding six-count indictment, which added one count to original indictment charging codefendant with possession of firearm by convicted felon, did not restart 70-day period; defendant was not charged in added count and offenses charged in remaining five counts of superseding indictment, conspiracy to possess and possession of 50 grams or more of crack cocaine with intent to deliver, were identical to offenses charged in original indictment. United States v Maloy (1993, MD Fla) 835 F Supp 1373. In Peterson v State (1977, Alaska) 562 P2d 1350, the court, affirming a conviction on four counts of second-degree murder, upheld the conclusion that the speedy trial rule commenced running from the time of the defendant's arrest for one count of first-degree murder which gave rise to a complaint charging that crime and was not interrupted by a superseding indictment which charged the defendant with that same count of first-degree murder and three additional counts of first-degree murder arising out of the same criminal incident. The court noted that the speedy trial rule provided that the time period commenced running at the time of the initial arrest or filing of the charges, whichever was first, and that the later filing of charges based on the same criminal episode did not extend the speedy trial period unless the new charges were based on evidence not available at the time of the original filing. Finding that the evidence of all four murders in the case at bar was available on the date of the defendant's initial arrest, the court concluded that the 120-day speedy trial period was not extended by the filing of the superseding indictment. Although the defendant was not brought to trial within the 120-day period, the court held that it was not an abuse of discretion to relax the speedy trial rule where the delay amounted to only 15 days, the crimes involved were serious, there was no identifiable prejudice to the defendant, and the investigation was difficult because of the location of the crimes. Though speedy trial period did not begin anew on filing of DUI charges (unlike cases involving other types of charges), and defendant's trial was held after period had elapsed, defendant's failure to object until appeal of his conviction waived his right to object. State v Guerrero (1989, Ariz) 769 P2d 1014, 26 Ariz Adv Rep 27. Affirming a conviction for possession of a controlled substance, the court, in Williams v State (1980) 271 Ark 435, 609 SW2d 37, held that the defendant was not denied his right to a speedy trial where he was brought to trial before the expiration of the third full term of court following his original arrest as provided in the speedy trial rule. Although both the defense and the prosecution seemed to believe the original charges were nolle prossed, the record did not reflect any such action. In any event, the defendant was subsequently charged in an information on the same two counts of controlled substance possession. Noting that the speedy trial rule provides that the time commences to run from the date of the defendant's arrest if he is held in custody or released on bail to answer for the same offense or other offenses arising from the

same episode, the court stated that the late filing of the subsequent information did not start the time running anew from the day of the second arrest. *34658 Twelve-month speedy trial period ran from date of defendant's arrest under state rule where defendant was released on bail on day of arrest, and state's entry of nolle prosequi did not serve to extend that time period. Cox v State (1991) 304 Ark

234A, 803 SW2d 555. See State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S 391, s 8[a].

Granting a writ of prohibition to prevent the relator from being tried under a subsequent information, the court, in State ex rel. Bird v Stedman (1969, Fla App -3) 223 So 2d 85, held that the prosecution could not avoid the effects of the speedy trial rule by dismissing the information and then subsequently refiling the same charge under a new information where it was clear that the nolle prosequi to the prior information was entered solely for the purpose of avoiding the effect of the statute. The relator filed three successive demands for speedy trial in three successive terms of court pursuant to the speedy trial statute, but was not tried within the third term. Prior to the expiration of that term the nolle prosequi was entered on that information, and another information was filed. Noting that the speedy trial statute referred to the "crime" and not the "information" in calculating the speedy trial period, the court stated that to hold otherwise would allow an indefinite postponement of prosecution for a crime by the simple expedient of a continuous entry of nolle prosequi and a continuous refiling of informations charging the same crime. See also Clark v State (1975, Fla App -4) 318 So 2d 513, where the court, affirming a conviction for embezzlement, held that, although the speedy trial period ordinarily ran from the date of the defendant's arrest under the initial indictment, the defendant waived his rights where the waiver filed under the original indictment likewise applied to the subsequent information based on the same criminal episode or conduct. The defendant was originally indicted on two counts of petit larceny and one count of grand larceny. He thereafter filed a waiver of his right to be tried within the time period set forth in the speedy trial statute. The state later entered a nolle prosequi to the indictment and on the same day filed three informations, one of which was based on the same conduct or criminal episode as the indictment. The court concluded that the defendant's waiver applied to the information where the defendant made no motion for a speedy trial after the new information was filed, which motion would have required that he be tried within 60 days of the filing date of the motion. The court concluded that the judgment of conviction under that information was lawful where the state had tried the defendant within the 90-day period after the denial of his motion for discharge, which motion reinvoked the defendant's speedy trial rights under the subsequent information. Reversing a conviction for obtaining goods by use of a stolen credit card, the court, in Wright v State (1980, Fla App -5) 387 So 2d 1060, held that the defendant had been denied his right to a speedy trial under a statute requiring that a defendant be brought to trial within 180 days after his arrest where the original charges had been nolle prossed and the defendant had not been arrested under the subsequent information until more than 3 years after the filing of that information. The defendant was originally arrested and charged with buying, receiving, and concealing stolen property.

These charges were dropped approximately 1 week later and shortly thereafter an information based on the same criminal transaction was filed in another county. After the original charges were dropped, the defendant had moved from his residence but had notified the post office and the telephone company of his new address. However, he was not arrested until 3 years later because the authorities did not obtain his new address. Stating that the charges against the defendant involved his obtaining the same property from the same store on the same day, the court concluded that the 180-day speedy trial period continued to run from his arrest on the original charges and that the nolle prosse of those charges did not stop the running of the statutory time period. The court also concluded that the defendant was continuously available for trial since he had left his forwarding address and had not evaded arrest in any way. In State v Davidson (1957) 78 Idaho 553, 309 P2d 211, the court, rejecting the defendant's claim that he was denied his statutory right to a speedy trial, impliedly held that the speedy trial period was not tolled or started anew by the replacement of the original information with a new information on the motion of the prosecution. Although the prosecution successfully moved to file an amended information, the amended information was treated as a new information, as though the original information had been dismissed or had never existed, and the defendant was arraigned and pleaded anew to the subsequent information. In determining the validity of the defendant's speedy trial claim, the court calculated the threeterm requirement from the time the prior accusatory instrument was filed against the defendant. *34659 In Brooks v People (1878) 88 Ill 327, where an indictment was returned at the March term, and as three counts were quashed and a nolle entered as to the fourth, a new indictment was found at the April term, for the same matter, and defendants were tried and convicted at the July term, which the court construed as the fourth term since the commitment, terms of criminal court being monthly, it was held that a motion for discharge made at that term prior to the trial should have been sustained, under a statute providing that any person committed for a crime and not on bail, and not tried at or before the second term of the court, should be set at liberty unless the delay was occasioned by the prisoner, and providing that the court might continue the case to the third term if necessary to procure evidence. The court said that, as affecting the present question, it must be regarded as if there had been no dismissal of the first indictment, or as if the present indictment had been found at the March term. The court further observed that "any other construction would open the way for the complete evasion of the statute, as the prosecuting officer, upon the arrival of a second or third term, would have only to enter a nolle prosequi to the indictment, have the defendants held in custody until another indictment could be found, and thus nullify the provision of the statute." In Newlin v People (1906) 221 Ill 166, 77 NE 529, where defendant was indicted March 7, 1905, and confined in jail from that time until he was put upon trial on the first day of December, 1905, under a later indictment which had been returned on the 21st day of November 1905, charging the same offenses, burglary and larceny, as the first

indictment, which had been disposed of by nolle proseque on November 25, 1905, and it appeared that after the first indictment there was a March term and a June term of court, it was held that defendant was entitled to be set at liberty, in view of a statute providing, in so far as is herein pertinent, that "any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried at some term of the

court having jurisdiction of the offense commencing within four months of the date of commitment, or if there is no term commencing within that time, then at or before the first term commencing after said four months, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the people, and that there is reasonable grounds to believe that such evidence may be procured at the next term in which case the court may continue the case to the next term." The court said that in view of the absolute right conferred by the statute upon a person charged with crime and imprisoned in jail, such statute implementing the constitutional guaranty of a speedy trial, it is not sufficient for the prosecution to say, in answer to an application under this statute, that it was inconvenient or impossible for the judges of the circuit to hold the term of the court within the time fixed by the statute, nor was the fact that no petit jury was summoned at the June term sufficient excuse for passing the case at that term. It was pointed out that the circumstances that a second indictment was found alleging the same offenses as the first, that a nolle prosequi was entered as to the first indictment, and that defendant was tried within four months after the return of the second indictment, were without significance, the court stating that each indictment was for the same felonies, and that if defendant was entitled to be set at liberty while held under the first indictment, he could not be rightfully arrested and held or committed for the same offenses when charged by the second indictment. And in People ex rel. Nagel v Heider (1907) 225 Ill 347, 80 NE 291, where relator was committed in August, 1905, and indicted in September of that year, and, instead of being discharged from custody as ordered by the court on the ground of delay in bringing him to trial, was, in January, 1906, retained in prison under a new indictment for the same crime, and was thus not tried at a term commencing within four months after his original commitment, it was held that the relator, not having been tried within the time limited by the statute considered in the preceding case, was entitled to be set at liberty, the court stating that when a person tried for a crime brings himself within the provisions of the statute, he is entitled to be set at liberty and cannot afterward be committed or held for the same offense when charged therewith by a second indictment. The rule that the provisions of the speedy trial statute were neither tolled nor extended by the state's obtaining indictment after indictment charging the same crime and thereby attempting to evade the speedy trial limits was also recognized in People v Witt (1928) 333 Ill 258, 164 NE 682; People v Hamby (1963) 27 Ill 2d 493, 190 NE2d 289, cert den 372 US 980, 10 L Ed 2d 145, 83 S Ct 1116 and cert den 375 US 857, 11 L Ed 2d 84, 84 S Ct 120; and People v Hatchett (1967) 82 Ill App 2d 40, 226 NE2d 97. *34660 See People v Fosdick (1967) 36 Ill 2d 524, 224 NE2d 242, where the court, affirming a conviction for rape, held that the failure to bring the defendant to trial within the 120-day statutory period from the date of his original incarceration under

the original complaint did not warrant his discharge where the delay of 6 days was attributable to the defendant's waiver of a jury trial on the day the trial before a jury was scheduled to commence. The defendant was originally charged in a criminal complaint, but that complaint was voluntarily dismissed by the state to permit prosecution of the defendant on unrelated charges in another county. An indictment charging the same crimes as two earlier complaints was subsequently returned. Stating that neither the dismissal and refiling of the same charge nor the voluntary relinquishment of the defendant to another county could deny the defendant his right to a speedy trial, the court concluded that there was nothing to prevent his trial on the instant charges within the 120 days of his original incarceration. The court stated that while the waiver of a jury trial ordinarily serves to expedite a trial, the last-minute waiver in this case had the opposite effect. See also People v Parker (1978) 59 Ill App 3d 302, 16 Ill Dec 592, 375 NE2d 465, in which the court, affirming a judgment dismissing two indictments on speedy trial grounds, held that the subsequent indictment was subject to the same statutory time limitations as the initial indictment where the charges in the subsequent indictment arose from the same facts that were the basis for the first indictment and were known by the state at the time the initial indictment was returned. The defendant was originally charged in the first indictment with bribery and official misconduct. The defendant repeatedly demanded a trial on the initial indictment. Thereafter, the defendant was reindicted for theft, bribery, and official misconduct, and subsequently moved to dismiss both indictments on the ground that he was not brought to trial within 160 days after his demand for trial as required by the speedy trial statute. Noting that the theft charge added to the subsequent indictment arose from the same set of facts as the other charges found in both indictments, the court concluded that the running of the statutory period was not affected by the reindictment on the subsequent offense. In Johnson v State (1969) 252 Ind 79, 246 NE2d 181, the court, affirming a conviction for carrying a pistol without a license, held that where a prosecutor obtains a nolle prosequi and later refiles an affidavit or indictment charging the same offense, the period between the nolle and the refiling would be counted in resolving the speedy trial issue as if the accused had been held by recognizance during that period. However, the court would not include the time between the filing of the first affidavit and the nolle where the defendant did not show that during that time no continuance was granted on his motion or that the delay was not due to his acts. The speedy trial statute provided that a defendant held by recognizance to answer an indictment or affidavit was to be tried no later than three terms of court or else discharged unless any delay was caused by his act or a continuance was obtained on his motion. The court stated that it was up to the defendant to bring himself within the statute and that he had failed to do so by neglecting to present the record of the proceedings under the initial affidavit that was nolle prossed by the state or to offer a sworn statement concerning the period between the filing of the original affidavit and the nolle. Defendant could not successfully assert that he was denied right to speedy trial

under applicable statues, based on fact that period of time between date of defendant's arraignment on first indictment and date of trial, which occurred after third indictment, exceed period required by statute, where defendant had agreed to continuance of first indictment based on court congestion, waiving his right to speedy trial on first indictment, where during period of waiver, defendant made no objection to any delay caused by continuance, and defendant made no objection or request any clarification regarding length of continuance after

second indictment was returned; thus, defendant was rendered at least partially responsible for delay. Commonwealth v Conefrey (1991) 410 Mass 1, 570 NE2d 1384. In prosecution for robbery, where defendant was first arraigned and brought to trial, but state nolle prossed case during voir dire, and subsequent indictment on same charges was issued, arraignment set and trial had, defendant was not denied speedy trial under state statue whether time was calculated under method of date of second arraignment as starting or date of filing of nolle prosequi, inasmuch as defendant was brought to trial within statutory period under either method. State v Granger (1984, Mo App) 680 SW2d 258. *34661 Ninety-day period between dismissal of original indictment due to then-existing court rule and filing of new indictment would not be excluded from time calculation for speedy trial under "exceptional circumstance" exclusion where decision to dismiss was not erroneous at time it was made, procedure was not "functional equivalent" of appeal, and 90-day delay was not reasonable. People v Cortes (1992) 80 NY2d 201, 590 NYS2d 9, 604 NE2d 71. Reversing a judgment convicting the defendant of first-degree conspiracy, the court, in People v Colon (1980, 1st Dept) 76 App Div 2d 805, 429 NYS2d 432, held that the speedy trial statute commenced to run from the time of the original felony complaint and was not interrupted by the prosecution's obtaining a superseding indictment. The original complaint charged the defendant with sale of cocaine. The subsequent indictment was obtained by a separate jurisdictional entity, the Special Narcotics Prosecutor, and charged not only sale but also conspiracy to sell cocaine. Noting that the speedy trial statute provided that a criminal action was commenced by the filing of an accusatory instrument and that the action is deemed commenced from the first instrument if more than one is filed during the course of the action, the court concluded that the speedy trial period ran from the filing of the original complaint. Rejecting the prosecution's contention that the speedy trial period on the conspiracy charge be calculated from the date of the filing of the subsequent indictment since that charge was a "new crime," the court held that such a finding would frustrate the purposes of the Speedy Trial Act where the time frame of the two charges was not significantly different, the underlying substantive charges were the same, and the superseding indictment was too intimately related to the original complaint to permit a filing 6 months later. Where felony complaint was replaced with or converted to misdemeanor accusatory instrument charging misdemeanor, state was required to be ready to proceed to trial within 90 days from filing of new accusatory instrument or 6 months from filing of felony complaint, whichever period was less. People v Garcia (1995, City Crim Ct) 163 Misc 2d 862, 622 NYS2d 1019. Where felony charge was reduced to misdemeanor charge, and misdemeanor charge was factually baseless, under statute, 60-day speedy trial period began to run upon filing of felony charge. People v Rashtak

(1995, City Crim Ct) 165 Misc 2d 236, 629 NYS2d 946. People could not announce partially ready for trial for purposes of speedy trial statute on partially converted accusatory instrument without first curing jurisdictional defects in the accusatory instrument by converting, dismissing or severing the unconverted charges. McKinney's CPL ss 30.30(1)(b), 170.30(1)(e). People v. Peluso, 192 Misc. 2d 33, 745 N.Y.S.2d 845 (Crim. Ct. 2002). Defendant's consent to adjournment of criminal possession of a hypodermic needle charge did not extend time for state to file revived accusatory instruments for dismissed charges for criminal sale or marijuana, and thus period between defendant's alleged consent and state's refiling of charges was chargeable to state for statutory speedy trial purposes. McKinney's CPL s 30.30; McKinney's Penal Law s 221.40. People v. Ruparelia, 723 N.Y.S.2d 843 (City Ct. 2001). See State v Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759, motion overr, infra s 5[b], in which the court held that the time expended pending trial under the original indictment and the time between dismissal and reindictment during which the defendant was incarcerated or released on bail would be added to the time expended under the subsequent indictment where a nolle prosequi was entered on the original indictment or that indictment was dismissed through the fault of the prosecution. Days between date on which misdemeanor charges against defendant for driving while under the influence (DUI) and for having passenger on outside of vehicle were dismissed and date on which grand jury returned no bill on felony vehicular homicide charge against defendant, during which defendant was bound over to grand jury on felony charge, were chargeable to state for constitutional speedy trial purposes under statutory 90-day trial deadline for misdemeanor charges, in proceeding in which misdemeanor charges were subsequently refiled, where all three charged offenses arose out of same event. U.S.C.A. Const. Amend. 6; R.C. s 2945.71. City of Oregon v. Kohne, 117 Ohio App. 3d 179, 690 N.E.2d 66 (6th Dist. Lucas County 1997). *34662 See Commonwealth v Whitaker (1976) 467 Pa 436, 359 A2d 174, wherein the court held that the prosecution's entry of a nolle prosequi did not toll the running of the speedy trial statute where the prosecution sought the dismissal to evade the speedy trial rule. Two days before the expiration of the speedy trial period, the prosecution moved for leave to enter a nolle prosequi, which motion was granted over the defendant's objection. The prosecution subsequently moved to vacate the nolle prosequi, and the defendant, joining in that motion, also moved to dismiss all charges for failure to afford him a speedy trial. Both motions were thereafter granted. Affirming the dismissal, the court concluded that the prosecution improperly sought an extension of time to prosecute the defendant by using the nolle prosequi procedure and failing to employ the provision of the speedy trial rule that permits extensions of time after a hearing at which the defendant must be heard.

Affirming an order dismissing charges against the defendant for failure to bring him to trial within the 180-day period prescribed by rule, the court, in Commonwealth v Sires (1981) 284 Pa Super 50, 424 A2d 1386, held that the prosecution's withdrawal of the original complaint did not constitute a proper dismissal and that the prosecution by such tactics intended to evade the speedy trial requirements of the rule. The defendant was originally charged with theft by receiving stolen property. The original complaint was later withdrawn by the arresting officer, but identical charges were filed by the officer approximately 5 months after the date of withdrawal of the first complaint. The defendant was subsequently discharged and the second complaint dismissed on the ground that the defendant had not been brought to trial within 180 days of the scheduled date for the preliminary hearing on the first complaint. The court first determined that the withdrawal of the first complaint by the arresting officer did not constitute a proper dismissal by an impartial tribunal. The court stated that requiring dismissal by an impartial tribunal serves to assure the defendant that charges were impartially and justly dismissed under the first complaint. The court also concluded that the withdrawal of the first complaint was an attempt by the prosecution to avoid the mandate of the speedy trial rule since it offered no facts other than its naked withdrawal of the complaint and reissuance of a second complaint at a later date where the only possible explanation offered was prosecutorial convenience. Reversing a conviction for tampering with a witness, the court, in Turner v State (1982, Tex App Houston (1st Dist)) 646 SW2d 485, revd on other grounds (Tex Crim) 662 SW2d 357, held that the speedy trial period commenced to run under the indictment for tampering with a witness from the time of the defendant's arrest for the crime of retaliation against a witness where the facts necessary to charge the defendant with tampering were available to the state at the same time as those enabling it to arrest the defendant for retaliation. The defendant was originally arrested and subsequently indicted for retaliation against a witness. Apparently abandoning the initial indictment, the prosecution subsequently indicted the defendant for tampering with a witness and reindicted him for retaliation. The defendant was not indicted for tampering with a witness until 175 days after his arrest. Noting that the state did not contend that the subsequent charge was based on any newly available or newly discovered evidence, the court concluded that there was no valid reason given as to why the defendant could not have been indicted and tried on the tampering charge within the 120-day statutory time limit where the offenses in the two indictments were based on the same criminal act. Affirming the dismissal of a complaint and a subsequent information charging the defendant with assault, the court, in State v Peterson (1978) 90 Wash 2d 423, 585 P2d 66, held that the speedy trial period began running on all the charges at the time of the issuance of the original complaint. The defendant was originally charged with assault on a police officer, but no further action besides the issuance of the complaint was taken for over 1 year until the defendant, who was in custody of federal authorities,

attempted to obtain a disposition on that charge. Approximately 2 years after the filing of the initial complaint, an information was filed charging the defendant with two counts of assault in the first degree, one count being the same as that in the original complaint and the other count connected with the same incident but relating to another police officer. Although the speedy trial statute required that a defendant be tried within 90 days, or 60 days if in custody, following a preliminary appearance, the defendant was never granted a preliminary appearance. The court concluded that the failure to afford the defendant a preliminary appearance could not be used to frustrate the spirit of the speedy trial rule and that in such a situation the date of issuance of the complaint would start the running of the time period. The court also held that this conclusion applied to the new charge under the information where that charge arose out of the same criminal incident as the original charge, there being a preference for a single disposition of all charges arising from one incident. *34663 In State v Crawford (1919) 83 W Va 556, 98 SE 615, an indictment for murder was found at the January term, 1911, and in that term there was a continuance on motion of the accused until April 11, 1911. At the April and July terms there were continuances of the case on motions of the state, and at the next term, the third after the date of the indictment, a nol pros was entered. At the January term, 1916, a new indictment charging the murder alleged in the first was returned, and on a motion for discharge on the ground of detention without trial, under the former indictment, for such a period of time as conferred right of discharge from the offense, accused proved his readiness for trial at the April, July, and October terms. Presumptively the state was unable to show facts applying the exceptions prescribed by the statute, inasmuch as it made no effort to do so, but merely denied the right of accused to count the October term, 1911, because he was not held for trial until it ended. The court, contrary to the contention of the state, held that the October term should be counted, saying in this connection: "To permit the state to enter a nolle prosequi within the third term and reindict for the same offense, and thus deprive the prisoner of the terms fully elapsed as well as the term about to end, would make it possible to keep the prisoner in custody or under recognizance for an indefinite period of time, on charges of a single offense, unless, perhaps, he could enforce a trial by the writ of mandamus." The rule that the speedy trial period runs from the defendant's arrest under the initial charges and is not interrupted where the prosecution nolle prosses the original information and replaces it with another information based on the same criminal episode or charging the same crimes was also recognized in the following cases: Fla--Williams v State (1993, Fla) 622 So 2d 477, 18 FLW S 393; Dorian v State (1994, Fla) 642 So 2d 1359, 19 FLW S 511; Genden v Fuller (1994, Fla) 648 So 2d 1183, 19 FLW S 559; State v Boren (1973, Fla App -3) 273 So 2d 415; State ex rel. Green v Patterson (1973, Fla App -2) 279 So 2d 362; State ex rel. Williams v Cowart (1973, Fla App -3) 281 So 2d 527, cert den (Fla) 286 So 2d 11; Swanson v Love (1974, Fla App -2) 290 So 2d 112; Gue v State (1974, Fla App -2) 297 So 2d 135;; Homer v State (1978, Fla App -3) 358 So 2d 1176, cert den (Fla) 364 So 2d 886; State v Rheinsmith (1978, Fla App

-2) 362 So 2d 698;; State v Boyd (1979, Fla App -2) 368 So 2d 54, dismd without op (Fla) 372 So 2d 466;; Datema v Barad (1979, Fla App -3) 372 So 2d 193; State v Jordan (1983, Fla App -2) 436 So 2d 291; Adams v State (1995, Fla App -2) 659 So 2d 396, 20 FLW D 1687, related proceeding (Fla App -2), 20 FLW D 2573 and related proceeding (Fla App -2) 659 So 2d 399, 20 FLW D 1685 and related proceeding (Fla App -2), 20 FLW D 2545.

NY--People v Jaswinder (1995, City Crim Ct) 165 Misc 2d 371, 632 NYS2d 923. [b] Held to be tolled

The courts in the following cases, in which the termination of the prior accusatory instrument was attributable to the prosecution, held that the speedy trial period did not run during the period between the dismissal of the prior accusatory instrument and the filing of a subsequent accusatory instrument or the rearrest of the defendant on the subsequent charges. US--United States v Kelly (1995, CA2 NY) 45 F3d 45; United States v Nava-Salazar (1994, CA7 Ill) 30 F3d 788, cert den (US) 130 L Ed 2d 421; United States v Olivo (1995, CA10 Okla) 69 F3d 1057, supp op, on reh (CA10 Okla) 80 F3d 1466 (filing of superseding indictment that added additional conspiracy count and expanded existing conspiracy count); U.S. v. Broadwater, 151 F.3d 1359 (11th Cir. 1998), petition for cert. filed (U.S. Nov. 23, 1998). *34664 Ark--Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). DC--Givens v United States (1994, Dist Col App) 644 A2d 1373. Dist Col--Dickerson v United States (1994, Dist Col App) 650 A2d 680. Hawaii--State v Ikezawa (1993, Hawaii) 857 P2d 593 (Hawaii Rules of Penal Procedure exclude time between dismissal of charge by prosecutor and arrest or filing of new charge, whichever is sooner, where later charge is required to be joined with original charge). Ill--People v Young (1991, 1st Dist) 220 Ill App 3d 488, 163 Ill Dec 290, 581 NE2d 241. Ind--Sweeney v. State, 704 N.E.2d 86 (Ind. 1998), cert. denied, 119 S. Ct. 2393 (U.S. 1999); Bridwell v State (1994, Ind App) 640 NE2d 437, transfer den (Nov 30, 1994). Neb--State v Dyer (1994) 245 Neb 385, 513 NW2d 316; State v. French, 9 Neb. App. 866, 621 N.W.2d 548 (2001). Ohio--State v Broughton (1991) 62 Ohio St 3d 253, 581 NE2d 541. Va--Harris v. Com., 520 S.E.2d 825 (Va. 1999). Wash--State v Estabrook (1993) 68 Wash App 309, 842 P2d 1001, review den 121 Wash 2d 1024, 854 P2d 1084 (90-day period for bringing defendant to trial was tolled during three-year perioed of delay between dismissal of complaint and its subsequent refiling). And the rule that where the initial indictment, information, or complaint is dismissed on the government's motion, the running of the Speedy Trial Act (18 U.S.C.A. s 3161) is tolled between the dismissal and the filing of a new indictment, information, or complaint charging the same crimes or based on the same criminal activity, was

also recognized in United States v Flores (1974, CA2 NY) 501 F2d 1356; United States v Hillegas (1978, CA2 NY) 578 F2d 453; United States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed Rules Evid Serv 454; United States v Bilsky (1981, CA6 Tenn) 664 F2d 613; United States v Arkus (1982, CA9 Cal) 675 F2d 245; United States v Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920; United States v Hicks (1982, CA5 La) 693 F2d 32, cert den 459 US 1220, 75 L Ed 2d 461, 103 S Ct 1226; United States v Pajari (1983, CA8 Minn) 715 F2d 1378; United States v Sebastian (1977, WD NY) 428 F Supp 967, affd (CA2 NY) 562 F2d 211 and affd without op (CA2 NY) 578 F2d 1372; United States v Salmon (1981, SD Tex) 504 F Supp 1270; and United States v Borum (1982, DC Dist Col) 544 F Supp 170. [FN9] Affirming a conviction for conspiracy to possess with intent to distribute cocaine, the court, in United States v Rodriguez-Restrepo (1982, CA2 NY) 680 F2d 920, held that the time between the dismissal of the original indictment on the government's motion and the defendant's first appearance to answer the subsequent indictment charging her with the same crime was not to be included in computing the time elapsed under the Speedy Trial Act (18 U.S.C.A. s 3161(c)(1)). The first indictment charging the defendant with cocaine violations was in effect for 30 days before it was dismissed. Approximately 2 months later the defendant was again indicted, but her arraignment on the second indictment did not take place for approximately 11 months because of her absence from the country. Twenty-three days elapsed between her arraignment on the second indictment and her appearance for trial. Noting that the defendant was therefore under indictment for a total of 53 days pursuant to the two indictments, the court concluded that she had been brought to trial within the 70-day requirement of the Act. *34665 When an indictment is dismissed on the government's motion, and the defendant is thereafter reindicted on identical charges, the seventy-day Speedy Trial Act period is calculated from the date of the first arraignment, but the period during which no indictment is pending is excluded from the seventy-day calculation. 18 U.S.C.A. s 3161(h). U.S. v. Osteen, 254 F.3d 521 (4th Cir. 2001). Defendant's statutory right to a speedy trial was not violated by filing of superseding indictment more than 30 days after defendant's arrest; filing of first indictment charging defendant with aiding and abetting in harboring undocumented alien was sufficient to toll 30-day arrest-to-indictment clock for purposes of filing of the superseding indictment charging defendant with

aiding and abetting the two codefendants in harboring two different undocumented aliens. 18 U.S.C.A. ss 2, 3161; Immigration and Nationality Act, s 274(a), 8 U.S.C.A. s 1324(a). U.S. v. Perez, 217 F.3d 323 (5th Cir. 2000). In considering defendant's claim that delay prior to his indictment violated his rights under Speedy Trial Act (18 U.S.C.A. s 3161), district court properly ignored his arrest by state authorities and filing of state charges (which were subsequently dismissed); his speedy trial rights began to run, at the earliest, on date federal complaint was filed and were tolled during period between dismissal of complaint and reinstatement of charges by indictment. United States v Fuesting (1988, CA7 Ind) 845 F2d 664. Under Speedy Trial Act (18 U.S.C.A. s 3161 et seq.), in prosecution in which government dismissed first indictment then later reindicted defendant, running of speedy trial period resumed on the later of (1) date of reindictment or (2) defendant's arraignment under second indictment. United States v Leone (1987, CA8 Iowa) 823 F2d 246, 23 Fed Rules Evid Serv 751. Where government filed superseding indictment in narcotics prosecution, period between date superseding indictment was filed and date defendant was arraigned on that indictment was excluded in determining whether requirements of federal Speedy Trial Act had been complied with; situation was analogous to period between dismissal of indictment and issuance of new one, which was expressly excepted by 18 U.S.C.A. s 3161(h)(6). United States v McKay (1994, CA11 Fla) 30 F3d 1418, 8 FLW Fed C 569. If the government moves to dismiss a count following a mistrial, it does not get a "fresh clock" on reindictment for purposes of Speedy Trial Act; rather, the speedy trial time is tolled from the dismissal of the original count until the reindictment. 18 U.S.C.A. s 3161 et seq. U.S. v. Broadwater, 151 F.3d 1359 (11th Cir. 1998), petition for cert. filed (U.S. Nov. 23, 1998). Eighteen-month period between dismissal of original charge by prosecutor and indictment for same crime was excludable in calculating allowable six-month delay period for speedy trial purposes. State v Holt (1984, Hawaii) 684 P2d 971. Where defendant was arrested during gambling raid on March 18, 1989, was served with citation ordering him to appear for trial on charge of gambling, and appeared for trial on April 19, 1989, where state's motion to dismiss charge was granted, and where, on March 19, 1990, defendant was indicted for promoting gambling in first degree and possession of gambling device--charges arising from same activity referred to in citation issued April 19, 1989--defendant was not entitled to dismissal of indictment, despite his claim that his constitutional rights to speedy trial had been violated and that, under applicable rule of penal procedure, time period during which no charges arising out of incident were pending was not excludable. Applicable rule of penal procedure excluded period of time when no charges that could have joined with dismissed

charges were pending against defendant, and time accrued on first charge was applicable to second charge. State v Balauro (1992) 73 Hawaii 70, 828 P2d 267, State v Stone (1982) 65 Hawaii 308, 651 P2d 485, s 8[a], to extent it is inconsistent with rule of penal procedure excluding period of time when no charges that could have been joined with dismissed charges are pending against defendant and providing that time accrued on first charge is applicable to second charges. *34666 Affirming a judgment discharging a defendant for failure to bring him to trial within 120 days of incarceration as required by statute, the court, in People v Wey (1976) 34 Ill App 3d 916, 341 NE2d 83, held that the speedy trial statute did not run between the dismissal of the initial indictment and the defendant's arrest under a subsequent indictment where the defendant was released from custody after the initial indictment was nol prossed by the prosecution and where there was no contention that the defendant contributed to cause the delay or manipulated the proceedings to evade trial. The defendant spent 75 days in custody under the first indictment and 56 days under the second indictment. Since the total period of incarceration exceeded the 120-day speedy trial limit, the court concluded that the defendant was entitled to discharge. See People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d 1258, app den (Ill) 125 Ill Dec 225, 530 NE2d 253, s 11. See People v Decatur (1989, 1st Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548 NE2d 509, app den (Ill) 142 Ill Dec 884, 553 NE2d 398, s 11. Prosecution's request for nolle prosequi tolled statutory speedy trial term where request was due to lack of laboratory analysis for substance recovered from defendant, and there was no evidence of desire by prosecution to harass or prejudice defendant. People v Austin (1990, 1st Dist) 195 Ill App 3d 17, 141 Ill Dec 731, 551 NE2d 1074. Where state dismissed original charges against defendant with 17 days remaining on the 70-day period under speedy trial rule and then refiled charges against defendant, speedy trial clock did not begin to run again until defendant was taken into custody and reincarcerated. Rules Crim. Proc., Rule 4(B). Bowers v. State, 717 N.E.2d 242 (Ind. Ct. App. 1999). In determining whether time periods mandated by speedy trial statute had elapsed with respect to misdemeanor driving under influence of alcohol charges against defendant, time between dismissals and refiling of case was to be disregarded. Derby v Lackey (1988) 243 Kan 744, 763 P2d 614 (citing annotation). Trial court erred in not dismissing arson information for violation of state speedy trial statute, where, although state was entitled to tolling of statute's six-month period for time between unexplained dismissal of first information (charging second-degree arson) and second information (charging first-degree arson on same facts), defendant was entitled to tack time

expended during pendency of first information onto time expended while second information was pending, with result that trial starting five days after combined six-month period was untimely. State v Sumstine (1991) 239 Neb 707, 478 NW2d 240. The time chargeable to the State under the Speedy Trial Act ceases, or is tolled, during the interval between the State's dismissal of the initial information and the refiling of an information charging the defendant with the same crime alleged in the previous, but dismissed, information. Neb. Rev. St. ss 29-1207 to 29-1209. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001). Though dismissal of first indictment was stated to be one "with leave," apparently referring to a statutory procedure for dismissal that was applicable when a defendant failed to appear and that did not terminate proceeding under indictment, "with leave" language was mere surplusage since defendant had appeared; thus, computation of speedy trial period was governed by statute that specifically excluded days between district attorney's dismissal of first indictment and reinstatement of charges by new indictment nearly a year later. State v Lamb (1988) 321 NC 633, 365 SE2d 600. Affirming a reversal of convictions for disorderly conduct and related offenses on the ground that the defendants were denied their statutory right to a speedy trial, the court, in State v Bonarrigo (1980) 62 Ohio St 2d 7, 16 Ohio Ops 3d 4, 402 NE2d 530, held that, where a prosecutor obtains a felony indictment based on the same conduct as was a previously nol prossed, lesser-included misdemeanor charge, the time within which the defendant must be brought to trial under the speedy trial statute consists of whatever residue remains from the 270-day speedy trial period after deducting the time expended under the misdemeanor charge prior to the nolle prosequi. The defendants were originally charged in complaints alleging that they committed the misdemeanor of disorderly conduct. The prosecution subsequently entered a nolle prosequi to those charges and on the same day obtained indictments charging the defendants with one count of aggravated riot, a felony, and two counts of misdemeanor assault, all of which were based on the same conduct as the complaints. The court found that the time expended under the misdemeanor complaints, when added to the time expended under the subsequent indictments, exceeded the 270 days required for bringing the defendants to trial under a charge of felony. The court stated that, after the entry of the nolle prosequi, the misdemeanor charges were no longer pending and the running of the statute was therefore tolled. *34667 Affirming a judgment dismissing an indictment charging the defendant with weapons violations, the court, in State v Stephens (1977) 52 Ohio App 2d 361, 6 Ohio Ops 3d 404, 370 NE2d 759, motion overr, held that the defendant was entitled to dismissal of the indictment where the time the defendant was incarcerated under that indictment and a prior indictment charging him with the same crime exceeded the statutory speedy trial period. The initial indictment was dismissed for want of prosecution after the denial of the prosecution's request for a continuance. The court held that

the proper method of computing time under the speedy trial statute was to include the time expended pending trial under the original indictment with the time expended under a subsequent indictment where a nolle prosequi was entered on the original indictment or dismissed through the fault of the prosecution. In addition, the court stated that if the defendant was released without bail on dismissal of the original indictment, he would not be entitled to have the time between the dismissal and the reindictment included in computing the speedy trial period since no charges would be pending during such period. However, the court continued, if the defendant was held in jail or released on bail between the dismissal and the reindictment, such time spent in jail or on bail would be included in the computation of time under the speedy trial rule. See also Durrough v State (1981, Tex Crim) 620 SW2d 134 (not followed on other grounds Collins v State (Tex App Fort Worth) 672 SW2d 588) and later app (Tex App Corpus Christi) 672 SW2d 860, where the court held that although the defendant was entitled under the speedy trial statute to add the time expended while the prior charge was pending to the time expended while the subsequent charge was pending, the speedy trial statute was not violated where the defendant's waiver of his speedy trial rights under the prior indictment applied also to the subsequent indictment. The defendant was indicted for murder, but the state obtained a new indictment on the identical charge and the previous indictment was dismissed 5 days later. The defendant previously waived his right to a speedy trial under the prior indictment when he requested two continuances. The court concluded that the statute did not permit the defendant to add the time expired during continuances granted at his request on the prior indictment to the subsequent one, at least not where the two indictments were identical. However, the conviction was reversed on the ground that a prospective juror had been improperly excluded. And the rule that where a prior charge is dismissed on time between the dismissal and the bringing of a subsequent charge is not to be included in computing the rights was also recognized in Vanderbilt v State (1981, Tex Crim) 629 SW2d 709, cert den 456 US 910, 72 L Johnson v State (1982, Tex App Dallas) 632 SW2d 658; and Cockrell v State (1982, Tex App Fort Worth) 632 motion of the state, the defendant's speedy trial Ed 2d 169, 102 S Ct 1760; SW2d 664.

Vacating a judgment convicting the defendant of criminally negligent homicide, the court, in Cole v State (1983, Tex Crim) 650 SW2d 818, held that the period of time expended under the prior complaint and information was to be added to the time expended under the subsequent charges where the prior charges were dismissed on the state's motion. Approximately 1 year after the filing of the initial charges and 9 months after the enactment of the speedy trial statute, the prosecution obtained dismissal of the initial charges and on the same day filed a new instrument charging the defendant with the same offense arising from the same incident. The defendant's motion to dismiss for failure to comply with the Speedy Trial Act was overruled after a hearing. Noting that the speedy trial statute provides that the time between the dismissal of the original charge and the bringing of the new charge based on the same offense or arising out of the same transaction was not to

be included in the speedy trial computation, the court concluded that it was reasonable to infer that the time elapsed under the first charging instrument was to be included in the computation along with the time elapsed under the subsequent instrument. The court stated that even before the date of his motion to dismiss, the defendant was entitled to dismissal for failure of the state to bring him to trial within the time limits of the

Speedy Trial Act. *34668 See Washington v State (1984, Tex App Dallas) 677 SW2d 142, s 11.

Delay of five months between second indictment and trial did not weigh against the State in speedy trial analysis where defendant filed motion for speedy trial 13 months after his first indictment, but he neglected to file another motion after his second indictment and instead filed motion to dismiss. Vernon's Ann. Texas Const. Art. 1, s 10. Griffith v. State, 976 S.W.2d 686 (Tex. App. Tyler 1997), reh'g overruled, (Feb. 4, 1998) and petition for discretionary review refused, (June 17, 1998). Affirming a burglary conviction, the court, in State v Wieman (1978) 19 Wash App 641, 577 P2d 154, held that the period between the dismissal of the original charge and the refiling of the same charge was excluded by the speedy trial rule in computing the period elapsed for speedy trial purposes. The prior complaint filed in district court was dismissed on the state's motion and an information was subsequently filed in the superior court. The court stated that there was no violation of the 90-day speedy trial rule unless the time between the dismissal and the refiling were included in the computation of the statutory period. [c] Held to run anew

In the following cases wherein the termination of the prior accusatory instrument was attributable to the prosecution, the courts held that the time expended under the prior accusatory instrument was not applicable to the speedy trial period under the subsequent accusatory instrument and that the speedy trial period began to run anew under the subsequent accusatory instrument. [FN10] Okla--Bowie v State (1995, Okla Crim) 906 P2d 759 (court pointed out that right to speedy trial is not primarily intended to prevent prejudice to defense caused by passage of time; rather, right is designed to minimize possibility of lengthy incarceration prior to trial). Trial court properly denied defendant's motion to second arrest, after original indictment was dismissed on speedy trial grounds, since thirty-day trial rule ran anew from date of subsequent arrest, rather than dates of original arrest or dismissal. SD Tex) 623 F Supp 74, later proceeding (CA5 Tex) 818 F2d 322, cert den (US) 98 L Ed 2d 859, 108 S Ct dismiss indictment following time limits of local speedy United States v Petak (1985, 772.

Period between date on which defendant first appeared in connection with indictment and entered guilty plea, and date on which charges were dismissed, was excludable in determining whether defendant's rights under Speedy Trial Act (STA) were violated after he was reindicted; defendant had not entered not guilty plea, as required under STA to begin operation of speedy trial clock. 18 U.S.C.A. s 3161(c)(1). U.S. v. O'Dell, 154 F.3d 358, 1998 FED App. 267P (6th Cir. 1998).

Prior dismissal of complaint without prejudice had no impact on subsequent filing of indictment for Speedy Trial Act purposes; thus, statutory time period began to run anew from issuance of subsequent indictment. United States v Nesbitt (1988, CA7 Ind) 852 F2d 1502, cert den (US) 102 L Ed 2d 798, 109 S Ct 808. Government's filing of third superseding indictment effectively dismissed the prior indictments, and thus, Speedy Trial Act clock was restarted as to all defendants joined in drug and conspiracy prosecution on date when last indicted codefendant made her initial appearance. 18 U.S.C.A. s 3161. U.S. v. Goodman, 36 F. Supp. 2d 947 (M.D. Ga. 1999). See also State v Pogue (1976) 113 Ariz 478, 557 P2d 163, in which the court held that the speedy trial period began to run from the filing of the subsequent complaint where the initial charges against the defendant were dismissed and the defendant was released from custody. Although the defendant was charged with burglary, he was subsequently told that no preliminary hearing would be held and that the charges were dismissed. However, a complaint was subsequently filed charging the same crime. Stating that the original attempt to charge the defendant was comparable to a complaint being filed and then dismissed, the court concluded that the speedy trial period ran from the filing of the subsequent complaint where there was no evidence that the prosecutor was attempting to evade the speedy trial limits by refusing to authorize a complaint under the earlier charges. *34669 In State v Million (1978) 120 Ariz 10, 583 P2d 897, the court, affirming a conviction for transporting marijuana, held that the speedy trial period commenced to run from the date of the second indictment. The original indictment was dismissed without prejudice on motion of the prosecution over the defendant's objection after the defendant's motion to suppress the use of evidence was granted and the state filed a notice of appeal from that order. The defendant contended that he was denied his right to a speedy trial by the delay of 435 days from the dismissal without prejudice of the original indictment to the filing of the new indictment. Rejecting the defendant's argument that the prosecution obtained dismissal of the initial indictment to avoid the provisions of the speedy trial rule, the court concluded that the state obtained the dismissal based on the legitimate belief that going to trial was unacceptable due to the probability that there would be insufficient evidence to convict in view of the suppression of the evidence. Affirming a conviction for conspiracy to commit prostitution and related charges, the court, in People v Wilkinson (1976) 37 Colo App 531, 555 P2d 1167 (disagreed with on other grounds People v Watson (Colo App) 666 P2d 1114), held that the defendant was not denied his statutory right to a speedy trial where the trial commenced within 6 months of the date of his entry of a plea on the second indictment. The defendant, originally indicted for two counts of eavesdropping and one count of criminal libel, entered a

plea of not guilty to all counts. Four days before trial on that indictment, a new, eight-count indictment charging the defendant with crimes arising out of the same criminal transactions was filed. Two days later the original indictment was dismissed, and the defendant subsequently entered a plea of not guilty to each of the eight counts of the second indictment. While agreeing that the prosecutor could not indiscriminately dismiss and refile charges to avoid the mandate of the speedy trial statutes, the court stated that, in order to be entitled to a dismissal on these grounds, the defendant had to establish affirmatively the existence of such a design on the part of the prosecution. The court added that this burden was not satisfied by proof that the prosecution sought and obtained a subsequent indictment for different offenses arising from the same transaction. The court therefore concluded that the 6-month limitation ran from the date the defendant entered his plea to the second indictment. Affirming a conviction for vehicular homicide, the court, in People v Dunhill (1977) 40 Colo App 137, 570 P2d 1097 (disagreed with on other grounds People v Watson (Colo App) 666 P2d 1114), held that the defendant was not denied his right to a speedy trial where his trial took place within 6 months from the time of his arraignment under the last information and where there was no showing that the prosecution was dismissing and refiling informations to avoid the 6-month speedy trial rule. The initial information was dismissed on the district attorney's motion on the ground of improper venue. The second information was dismissed for failure to prove venue and the last information was thereafter filed. The court held that the speedy trial period commenced on the defendant's arraignment under the last information. The court further stated that absent a showing that the prosecution was attempting to evade the speedy trial rule, there was no violation of the defendant's rights. Continuances obtained in connection with trial of original charges, but before new charges arising out of same facts are filed, are attributable to those later-filed charges for purposes of speedy-trial limits, even if state had knowledge of facts at time original prosecution was commenced. S.H.A. 725 ILCS 5/103-5. People v. Gooden, 296 Ill. App. 3d 205, 230 Ill. Dec. 584, 694 N.E.2d 215 (5th Dist. 1998) (abrogated by, People v. Reedy, 1999 WL 23253 (Ill. 1999)). In State v Bige (1924) 198 Iowa 573, 198 NW 510, it was held that accused was not denied a speedy trial because the indictment on which he was tried superseded a preceding one which had passed a term without trial, there being no claim that the trial was not held at the next term following that in which the second indictment was returned. In State v Rowland (1952) 172 Kan 224, 239 P2d 949, 30 ALR2d 455, decided under a prior speedy trial statute, the court held that the time expended under a prior information or indictment dismissed by the prosecution with the consent of the court was not to be added for speedy trial purposes to the time expended under a subsequent indictment or information charging the same crimes. The original information charging the defendant with forgery and related crimes was

filed in April 1949 and was dismissed during the September term. The defendant was rearrested and a new complaint was filed for the identical offenses during the May 1950 term. Rejecting the defendant's argument that he was denied his right to a speedy trial by the time expended under the two informations, the court concluded that the nolle prosequi or the dismissal of an indictment or information with the consent of the court was not a bar to reindictment or reinformation of the defendant on the identical charges and that the time prescribed for trial would be counted from the institution of the subsequent indictment or information. *34670 In absence of showing of subterfuge by state to avoid speedy trial statute, time when defendant was being held on prior charges, which were dismissed before arraignment and thus before 90-day speedy trial clock had begun to run, was not tacked onto time allotted to charges on which defendant was tried. State v Goss (1989) 245 Kan 189, 777 P2d 781. When criminal charges are nolle prossed, ordinarily, time period for commencing trial begins to run upon refiling, except where it is shown that prosecutor's purpose was to circumvent law. Thus, in prosecution for violations of controlled substance laws, trial court properly denied defendant's motion to dismiss for violation of speedy trial rule, where court, after listening to arguments from defendant and prosecutor regarding filing of nolle prossed charges, determined that state was not deliberately trying to circumvent law. Campbell v State (1991) 86 Md App 158, 586 A2d 32, cert gr 323 Md 115, 591 A2d 506. When charges are nol prossed and new charges are filed, a new and independent 180-day count begins under speedy trial statute and rule. Code 1957, Art. 27, s 591; Md.Rule 4-271. Baker v. State, 130 Md. App. 281, 745 A.2d 1142 (2000). The decision and order of the Supreme Court, Appellate Division, directing a new trial became final after the Court of Appeals dismissed the People's appeal and denied the People's motion to reargue the denial; therefore, state's failure to reannounce their readiness for trial within the statutorily-prescribed period, that commenced when the decision and order became final, mandated dismissal of defendant's indictment. McKinney's CPL ss 30.30, subd. 1(a, b), 30.30, subd. 5(a). People v. Blancero, 736 N.Y.S.2d 50 (App. Div. 2d Dep't 2001). Reversing a decision overturning a conviction on speedy trial grounds, the court, in State v Freeman (1983) 308 NC 502, 302 SE2d 779, held that the statutory speedy trial period began to run anew under a subsequent indictment where the original indictment was returned in a different county and prosecutorial district. The defendant was originally indicted on three counts of obtaining money by false pretenses. He was subsequently indicted in another county on three separate charges of conspiracy to obtain money by false pretenses and the initial indictment was later dismissed by the prosecution. His convictions were subsequently reversed on the ground that he had not been brought to trial within 120 days of the original indictment. Rejecting the claim of a speedy trial violation, the court stated that criminal actions cannot be considered as one common scheme or plan for speedy trial purposes

where such actions occur in different prosecutorial districts. The court concluded that to hold otherwise would allow the dismissal of a case in one district as a result of the actions by the prosecutor in another district without the knowledge or consent of the district attorney in the affected district.

Where superseding indictments were appropriate and were obtained in good faith, time period set by speedy trial rule began to run on date they were returned. State v Parker (1986) 316 NC 295, 341 SE2d 555. Reversing the dismissal of indictments charging the defendant with breaking or entering and first-degree rape, the court, in State v Simpson (1983) 60 NC App 436, 299 SE2d 257, petition den 308 NC 193, 302 SE2d 247, held that the speedy trial period commenced to run from the filing of the indictment that replaced the original charges voluntarily dismissed by the state. The original charges were set for a probable cause hearing, but no such hearing was held and the state took a voluntary dismissal. Thereafter, the defendant was indicted for the same offenses. Noting that the dismissal of the original charges was not based on G.S.15A-703 or a finding of no probable cause, the court interpreted the speedy trial statute to mean that where dismissals are based on other grounds, the speedy trial period runs from the subsequent indictment rather than the original charge. Therefore, the court concluded that the voluntary dismissal in the instant case and the subsequent indictment of the defendant started the speedy trial period running from the time of that indictment. Although defendant was in jail during most of the time between nolle prosequi and his reindictment for aggravated murder, his imprisonment would not be counted for purposes of computing the speedy trial time period; defendant's imprisonment resulted from his conviction on 11 counts of forgery in a wholly unrelated matter, and nolle prosequi was entered by the state in part based on defense arguments that there was insufficient proof and that further investigation of other suspects was necessary. R.C. ss 2945.71 et seq. State v. Myers, 97 Ohio St. 3d 335, 2002 -Ohio- 6658, 780 N.E.2d 186 (2002). *34671 Date of reissuance of defendant's misdemeanor charge of driving under the influence of intoxicants (DUII), following dismissal, was starting point, for purposes of speedy trial statute, for calculating period of time it took state to bring defendant to trial. ORS 131.135, 813.010. State v. Hampton, 152 Or. App. 742, 954 P.2d 1267 (1998). Where commonwealth's motion to dismiss was based on lack of evidence and not an bad faith, time for computing speedy trial period was properly calculated from date of second complaint. Commonwealth v Whiting (1985, Pa) 500 A2d 806. See Armstead v State (1984, Tex App El Paso) 677 SW2d 266, review ref, en banc (Tex Crim) 692 SW2d 99, s 24[a]. As calculated from preliminary hearing date for the original charges, speedy trial statute had not expired when grand jury returned new indictments six weeks later, charging a violation of a different statute based on the same alleged events, and thus, new indictments supplanted the finding of probable cause made by the district court, defendant's continued incarceration was based on the new indictments, and speedy trial statute began to run anew as of date of

new indictments' issuance, even though no indictment was ever issued for the offenses for which defendant was arrested and no nolle prosequi of the charges on which he was arrested by warrant was ever effected. Code 1950, s 19.2-243. Ashby v. Com., 33 Va. App. 540, 535 S.E.2d 182 (2000). And in State v Hansen (1894) 10 Wash 235, 38 P 1023, where defendant was brought to trial upon an information charging him with the crime of burglary committed in the nighttime, which information was quashed upon motion of the prosecuting attorney, with leave to file a new information, whereupon the prosecutor filed a new information charging burglary generally, which defendant moved to quash on the ground that he had not been brought to trial within sixty days after the filing of an information against him, the court held that if the second information could be filed at all, it must be held that the accused had no right to urge against a trial upon it that a time greater than sixty days had elapsed since the filing of some former information, which was no longer in the case. s 6. Where subsequent accusatory instrument was based on new evidence or facts In the following cases wherein the termination of the prior accusatory instrument was attributable to the prosecution and the subsequent accusatory instrument was based on new evidence or information that became known to the prosecution following the bringing of the prior accusatory instrument, the courts held that the applicable speedy trial period began to run anew under the subsequent accusatory instrument. Seventy-day period for bringing criminal defendants to trial under Speedy Trial Act did not begin to run on charges in second indictment which were not included in first indictment against defendants, even though charges arose from same criminal episode as original indictment. 18 U.S.C.A. s 3161(d). U.S. v. Howard, 63 F. Supp. 2d 728 (E.D. Va. 1999). In prosecution for embezzlement and making false entries into a bank's books, 70-day period within which trial was required to commence under speedy trial statute began to run anew from issuing of second indictment against defendant where original complaint was dismissed without prejudice on motion of government because government needed additional time to investigate alleged criminal activity and acquire further evidence. United States v May (1985, CA6 Mich) 771 F2d 980. In prosecution for conspiracy to defraud United States, superseding indictment with two new counts filed more than 1 year after original indictment did not violate speedy trial rights where, given complexities of prosecution, length of delay was not onerous, and prejudice to defendant was minimal, especially since preparing to defend count one encompassed preparing to defend original charge. United States v Pelini (1995, ND Ill) 896 F Supp 797. Speedy Trial Act does not guarantee that arrested individual indicted within 30 days of his arrest must, in that 30-day period,

be indicted for every crime known to government, failing which he may never be charged; thus, defendant's motion to dismiss superseding indictment, which was filed more than 30 days from date on which he was arrested but within five-year statute of limitations applicable to non-capital crimes, would be denied. United States v Wilson (1991, MD Ga) 762 F Supp 1501. *34672 Affirming a conviction for "Driving After Judgment Prohibited," the court, in People v Scott (1980) 200 Colo 365, 615 P2d 680, held that the defendant was not denied his statutory right to a speedy trial where the 6-month speedy trial period began to run from the entry of the defendant's plea of not guilty to the second complaint. The first complaint charged the defendant with the misdemeanor of driving while his license was revoked. The prosecution subsequently obtained dismissal of that charge after it was learned that the defendant had previously been adjudicated a habitual traffic offender. The second complaint charged the defendant with the felony of "Driving After Judgment Prohibited." Noting that by charging the defendant with the felony offense, the prosecution charged a new, different, and additional offense to the original misdemeanor charge, and that the record did not indicate that the district attorney indiscriminately dismissed and refiled the charges in order to avoid the mandate of the speedy trial rule, the court concluded that the dismissal and the filing of the new complaint caused the 6-month speedy trial period to begin to run from the entry of the not-guilty plea to the second complaint. Since the defendant was brought to trial within 6 months of his plea of not guilty to the second complaint, the court concluded that he had not been denied his right to a speedy trial. The applicable time period under the speedy trial rule was held, in State ex rel. Branch v Wade (1978, Fla App -1) 357 So 2d 473, to run from the time of an indictment for first-degree murder where the victim died after the defendant was arrested pursuant to an information charging him with attempted first-degree murder. Following the return of the subsequent indictment, the state entered a nolle prosequi on the attempted murder information. Denying the defendant's petition for a writ of prohibition to prevent his trial under a first-degree murder indictment, the court concluded that the speedy trial period could not have run on the murder charge prior to the indictment since, although both crimes arose from the same criminal conduct, the murder charge was not available until the victim died. Trial court properly exercised its discretion in dismissing, under statute allowing subsequent new prosecution in cases of serious crime, information charging defendant with murder and sexual assault, where prosecution sought dismissal of information four days before trial was scheduled to begin on basis of newly discovered evidence that appeared to be exculpatory, notwithstanding that defendant was subsequently indicted, tried and convicted on same charges, since indictment was based on prior evidence and final results of investigation of apparently exculpatory evidence that was under analysis inculpatory. State v Knox (1990, Iowa) 464 NW2d 445.

However, in State v Cuezze (1979) 225 Kan 274, 589 P2d 626, mod on other grounds 225 Kan 468, 595 P2d 723, the court, affirming so much of a judgment as dismissed an information against two of three defendants, held that the two defendants were denied their statutory right to a speedy trial where they remained continuously charged under two substantially identical informations for a period of time far in excess of the 180-day statutory time limit. The two defendants were charged in the original information and arraigned thereunder, while a third defendant was named as a coconspirator but was not charged. After additional evidence was obtained, a new information naming all three defendants was filed and the original information was subsequently dismissed. Noting that the second information was brought while the first was still pending, the court concluded that the state offered no valid justification for the delays and impliedly held that the entire period of time from the defendants' arraignment under the first information was includable, except delays caused by the defendants, in establishing their speedy trial rights. The court stated that absent a showing of necessity, the prosecution could not dismiss a criminal action and refile the identical charges against the same defendants and avoid the time limitations of the speedy trial statute. The 90-day period for bringing a defendant to trial after the granting of a motion for a new trial was held, in State v Haislip (1983) 234 Kan 329, 673 P2d 1094, to run from the time of the defendant's arraignment under a subsequent information where the state made an adequate showing of necessity for the dismissal of the original information and the refiling of the same charges. The defendant was originally charged and subsequently convicted after trial for murder in the first degree and aggravated battery on a law enforcement officer. Following the granting of a new trial, the prosecution became convinced of the involvement of another suspect in the murder and charged that suspect with the identical offenses. The prosecution's motion to consolidate the two cases having been denied, the charges against the defendant and the other suspect were dismissed without prejudice and a joint information instantaneously filed against both defendants. Noting that there was no evidence that the prosecution was attempting to manipulate the speedy trial requirement, the court concluded that the dismissal of the original information was based on necessity where the request to consolidate the cases was denied and a request by the prosecution for a continuance instead of dismissal would have been of no value since a continuance would not have accomplished the desired result of a consolidated trial. Computing the time from the arraignment under the subsequent information, the court stated that the defendant was tried within the 90-day period as required by statute. *34673 State did not violate rights of defendant under speedy trial statute, though after assistant county attorney had charged defendant with second-degree murder the State took over the case and reindicted defendant for felony child abuse murder, as State did not use second indictment to avoid time limits under speedy trial statute by refiling same charges from earlier indictment, but instead charged more serious crimes in the second complaint and indictment. K.S.A. 21-3401(b), 21-3402(b), 21-3436(a)(7), 22-3402(2). State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998).

Delay in bringing defendant to trial due to fact that first indictment was dismissed without prejudice because it did not include his aliases, he was presented to next grand jury which was a routine procedure, and his case was then set for trial was in no way a

deliberate attempt to harm the defense and, therefore, weighed less heavily against the State in determining whether defendant's Sixth Amendment speedy trial rights were violated. U.S.C.A. Const Amend 6. Jamison v. State, 741 So. 2d 359 (Miss. Ct. App. 1999). Denying a petition for a writ prohibiting further proceedings in criminal actions against the petitioners, the court, in State ex rel. Delgado v Stanley (1972) 83 NM 626, 495 P2d 1073, held that the petitioner's right to a speedy trial was not violated where the 6-month period provided by the speedy trial rule had not expired from the date the subsequent indictment was filed. The petitioners were originally charged in an information with possession of heroin, but the prosecution filed a nolle prosequi to that information. The petitioners were subsequently indicted on the same charge allegedly committed on the same day as that in the original information. Noting that the indictments were obtained as a result of newly obtained evidence that presumably came to light after the filing of the nolle prosequi, the court concluded that the speedy trial period ran from the filing of the subsequent indictment where the defense did not assert that this procedure was utilized by the prosecution as a means of evading the operation of the speedy trial rule. The court added that in a case where the defense asserted that the prosecution attempted to evade the speedy trial rule and the prosecution failed to prove that it acted in good faith in dismissing the original charges, the court would be inclined to hold that the operative date that commenced the running of the period set forth in the rule was that on which the original indictment or information was filed. Reversing the dismissal of indictments for speedy trial violations, the court, in State v Freeman (1983) 308 NC 502, 302 SE2d 779, held that the filing of a subsequent indictment controlled the computation of the speedy trial period where the state had a valid reason for obtaining that indictment to replace a previously filed indictment. The defendant was originally indicted for conspiracy to obtain money by false pretense. He was subsequently indicted on three counts of aiding and abetting in obtaining property by false pretense, as well as one count of conspiracy to commit false pretense. While the initial conspiracy indictments charged commission of those crimes on three specific dates, the subsequent indictments charged commission of the conspiracy during a period of approximately 3 months. Noting that the time of commission of the offenses could be vital to the state's case, the court concluded that the time period ran from the subsequent conspiracy indictments where the superseding indictment on the conspiracy charge was based on additional information and reflected the state's attempt to protect its interest in proving the defendant's guilt. Likewise, the court concluded that the speedy trial period on the aiding and abetting indictment ran from the subsequent indictments where those indictments represented the result of additional information leading to new and more specific charges. As calculated from preliminary hearing date for the original charges, speedy trial statute had not expired when grand jury returned new indictments six weeks later, charging a violation of a different

statute based on the same alleged events, and thus, new indictments supplanted the finding of probable cause made by the district court, defendant's continued incarceration was based on the new indictments, and speedy trial statute began to run anew as of date of new indictments' issuance, even though no indictment was ever issued for the offenses for which defendant was arrested and no nolle prosequi of the charges on which he was arrested by warrant was ever effected. Code 1950, s 19.2-243. Ashby v. Com., 33 Va. App. 540, 535 S.E.2d 182 (2000). *34674 In State v Anderson (1980) 94 Wash 2d 176, 616 P2d 612, later app 96 Wash 2d 739, 638 P2d 1205, cert den 459 US 842, 74 L Ed 2d 85, 103 S Ct 93, where the defendant was originally charged with seconddegree assault but was later charged with first-degree murder and first-degree manslaughter after the death of the victim, the court held that the speedy trial time commenced with his arraignment under the homicide charges since the speedy trial period could not go into effect until all of the elements of the crime had been completed. The original charges arose out of injuries inflicted on the defendant's stepdaughter. While those charges were pending, the victim died and the homicide charges were filed against the defendant. The assault charge was apparently abandoned by the prosecution. Rejecting the defendant's claim that the speedy trial time commenced to run on the date of his arraignment on the assault charge since the homicide charge was a crime based on the same conduct as the assault charge, the court concluded that the final and crucial element of the crime of first-degree murder, the death of the victim, had to occur before the speedy trial time began to run. s 7. Where prior accusatory instrument was alleged to be defective or otherwise invalid [a] Held to continue to run

The prior accusatory instruments in the following cases having been terminated by the prosecution due to an alleged defect or invalidity therein and having been replaced by new accusatory instruments, the courts held that the statutory speedy trial period continued to run unabated despite the termination. Reversing a conviction for driving a vehicle while his ability to operate it was impaired by the consumption of alcohol, the court, in Amon v People (1979) 198 Colo 172, 597 P2d 569, held that the defendant was denied his statutory right to a speedy trial where he was not brought to trial within 6 months of his original not-guilty plea under the original complaint. The original complaint charged the defendant with driving a motor vehicle while under the influence of "alcohol or narcotics." The prosecution subsequently filed an "Amended Complaint," charging the defendant with driving a motor vehicle while under the influence of "alcohol." The subsequent complaint was treated as an entirely new complaint, complete with a new affidavit, and the defendant was thereafter arraigned under that complaint. The trial took place approximately 9 months after the defendant's not-guilty plea to the original complaint, thereby violating the 6-month speedy trial period of the applicable statute. Stating that the crucial issue was whether the amended complaint charged any new, different, or additional

offense not alleged in the original complaint, thereby requiring the entry of another plea by the defendant, the court concluded that no such new, different, or additional offense was alleged in the subsequent complaint and that the speedy trial period therefore had to be computed from the date of the

defendant's original not-guilty plea. The statute involved in Durham v State (1851) 9 Ga 306, provided that one indicted for a noncapital offense might demand that he be tried at the term of court at which the indictment was found or at the next succeeding term and that if he was not tried at the term when demand was made or at the next succeeding term, he should, provided that at both terms there were juries impaneled which were qualified to try him, be absolutely discharged. In this case defendant was indicted at a May term of court and when his indictment was called at the succeeding November term, answered he was ready for trial, but the state moved for a nolle prosequi on the ground that the indictment was fatally defective. Defendant objected and applied for discharge under the statute, but the trial court refused to discharge the prisoner and allowed the nol pros. A new indictment was then preferred, and when it was called defendant answered ready, but the state applied for a continuance. Defendant objected and made a second application for discharge, which was refused. The reviewing court construed the statute to mean that while the state was not prevented from entering a nolle prosequi, assuming the case had not been submitted to a jury, this right could not abrogate the absolute right to a discharge given the accused by the statute, provided the statutory conditions as to the existence of a jury were met. With respect to the facts of the present case, it was held that while defendant's first application for discharge was premature, since it followed immediately upon the discontinuance of the first indictment, the second application should have been granted, since the state had asked for a continuance when the second indictment was called, and it was presumable that this indicated that the solicitor general believed he would have no other opportunity to try the case at that term of court, which, in view of the time of defendant's original demand for trial, was the last permissible term for trial of the indictment. *34675 In People v Stuckey (1967) 83 Ill App 2d 137, 227 NE2d 135, the court stated that the speedy trial period ran from the date of the defendant's commitment and was not affected by a reindictment to correct a defect in the original indictment. Although the original indictment correctly charged the defendant with the murder of his wife, the indictment incorrectly noted the victim's first name. The prosecutor thereafter obtained a correct indictment and subsequently nolle prossed the original indictment. The court stated that the sufficiency of the indictment was immaterial to the enforcement of the Act unless there was a showing that the state had nolle prossed the indictment and reindicted solely for the purpose of circumventing the statute. However, the court concluded that the defendant's speedy trial rights were not violated where the continuances he obtained under the first indictment applied to the second indictment and therefore brought the trial period within the requirements of the statute. In State ex rel. Wernke v Superior Court of Hendricks County (1976) 264 Ind 646, 348 NE2d 644, the court stated that it would look to the date of the filing of the first information in calculating the 1-year period provided by the speedy trial statute

where, although the first information charged the petitioner with delivery of marijuana and the subsequent information charged him with delivery of hashish, the statutory definition of "marijuana" included "hashish." The original information was dismissed on motion of the prosecution on the ground that it erroneously charged delivery of marijuana when the actual substance allegedly delivered was hashish. However, the court denied the petition for a writ of mandate and prohibition to compel the petitioner's discharge, basing its denial on the conclusion that the petitioner waived his right to discharge under the speedy trial statute by failing to object at the earliest opportunity to the setting of his trial date beyond the statutory 1-year time period. Defendant was not denied either statutory or constitutional right to speedy trial by virtue of 456-day delay between time defendant was first arrested and date of trial, where prosecution's delay in reindicting defendant was caused by mere negligence in preparing original indictment and was not to be weighed heavily against prosecution, where trial court quashed subsequent indictment because grand jury had not been reconvened by order of court, and final period of delay was caused by court docket congestion; defendant furthermore never really asserted right to speedy trial. Adams v State (1991, Miss) 583 So 2d 165. Defendant's statutory right to a speedy trial was violated in prosecution for endangering the welfare of a child, where Assistant District Attorney did not recognize his mistake in serving improper complaint on defendant, and did not serve corrected copy of superseding complaint upon defense counsel or file it with the court, until 92 days after commencement of criminal matter. McKinney's CPL s 30.30; McKinney's Penal Law s 260.10. People v. Mascali, 189 Misc. 2d 549, 736 N.Y.S.2d 839 (Crim. Ct. 2001). Indictment was subject to dismissal for People's failure to satisfy requirements of statute, which allowed People six months from filing of felony complaint in which to be ready for trial, where complaint was filed December 8, 1990, at which time, pursuant to statute, People had 182 days in which to be ready for trial, where defendant was indicted and People announced readiness for trial on June 6, 1991, 180 days after prosecution had commenced, and where, because of defect in evidence presented to grand jury, indictment was dismissed on January 6, 1992, and new indictment filed on January 7, 1992, but no new announcement of readiness for trial was made until January 10, 1992, when defendant was arraigned on second indictment, at which time 183 days of time had elapsed. Although People's announcement of readiness on first indictment satisfied statute with respect to subsequent indictment, they were, nevertheless, required to declare their readiness for trial after filing second indictment. People v Respress (1993, App Div, 4th Dept) 600 NYS2d 535 (defendant's constitutional right to speedy trial was also violated). Reversing a conviction for sex offenses, the court, in State v Kent (1971) 5 Or App 297, 484 P2d 1109, held that the statutory speedy trial period did not begin to run anew from the time of reindictment where the reindictment was unnecessary. The original indictment charged the defendant with three counts of sex-related crimes. The defendant filed a written notice of demand for an

early trial, which notice required by statute that he be brought to trial within 90 days, excluding continuances granted for good cause shown. Within the 90-day period, the prosecution obtained a second indictment that set out only two counts. The reason for reindictment was that the statute on which the third charge was based had been declared unconstitutional. Rejecting the prosecution's claim that the reindictment started the speedy trial period running anew, the court stated that the reindictment was unnecessary since a motion to dismiss the third count would have accomplished the same result.

*34676 Reversing a conviction for receiving stolen property and resisting arrest, the court, in Commonwealth v Ardolino (1982) 304 Pa Super 268, 450 A2d 674, held that the speedy trial period ran from the filing of the initial complaint and not from the filing of the final complaint where the first two complaints were improperly dismissed. The original complaint charging the defendant with receiving stolen property and conspiracy was nolle prossed on the ground that the complaint contained a substantial defect that could not be cured by an amendment. A second complaint alleging only the charge of receiving stolen property was withdrawn and a third complaint was eventually filed against the defendant charging him with receiving stolen property and resisting arrest, the latter charge arising out of an incident when the police went to the defendant's home to execute the arrest warrant issued after the second complaint. The court stated that there was no reason why the first complaint could not have been amended and that it was not even an informal defect to have left the resisting arrest charge off the second complaint, since that charge did not arise "from the same incident" as the receiving stolen property charge. In murder prosecution in which defendant was originally indicted by instrument alleging that he had shot victim, district attorney filed successful motion for a continuance shortly before original trial date, and defendant was reindicted by instrument alleging (correctly) that he had stabbed victim, with state announcing its readiness for trial on reindictment on same day, defendant's motion for dismissal on grounds that state had not complied with 120day speedy trial period should have been granted where readiness on reindictment was announced 168 days after commencement of action, and, though both indictments concerned same offense and continuance carried forward from first to second indictment, continuance had not been granted for reasons that qualify, under statute, for exclusion from speedy trial period. Santibanez v State (1986, Tex Crim) 717 SW2d 326. In prosecution for aggravated robbery in which on state's motion, original indictment was dismissed for alleging that actions of defendant were "with the effective consent" of victim instead of "without the effective consent", time period for speedy trial purposes on indictment filed two days later commenced on date of dismissal. Garcia v State (1984, Tex App Corpus Christi) 673 SW2d 696. [b] Held to run anew

In the following cases in which the prior accusatory instruments were terminated by the prosecution due to their being defective or invalid and were replaced with subsequent accusatory instruments, the courts held that the applicable speedy trial periods commenced to run anew under the subsequent accusatory instruments. Affirming a conviction for second-degree murder, the court, in State v Johnson (1976) 113 Ariz 506, 557 P2d 1063, held that the speedy trial period was computed from the defendant's arraignment under a

subsequent indictment where the original complaint was dismissed on the county attorney's motion "for the reason that complaint was failing for lack of jurisdiction." Two days before trial under the original complaint, the defense attorney noted a possible jurisdictional defect in the complaint. The same day as the dismissal of the complaint, the county attorney secured a grand jury indictment against the defendant charging him with the same offense. Noting that it had previously held that a second indictment on the same charge gave rise to a new time period where the defendants' motion for a new finding of probable cause was granted, the court concluded that the same reasoning applied in the instant case. Statutory time for speedy trial began to run anew from time of arraignment on second complaint, more than two years after dismissal of first complaint containing identical charges, where first complaint was dismissed as matter of necessity because, under new court of appeals' decision, original unverified complaint was invalid and conferred no jurisdiction on court, and where it appeared that state had not attempted to manipulate speedy trial requirements. State v Jamison (1991) 248 Kan 302, 806 P2d 972. Reversing a judgment dismissing charges of distribution of obscene material because the accused was not afforded a speedy trial, the court in State v Glenn (1984) 299 Md 464, 474 A2d 509, held that the date of the second indictment must be looked to in calculating the 180-day period provided by the speedy trial statute, where the original documents were nol prossed because of the prosecuting attorneys legitimate belief that the original documents were defective because they did not contain the word "knowingly." The court stated that in the event a second indictment was required because the original indictment was defective, the 180-day period would commence with the filing of the first indictment only in those instances where the second indictment was returned for the sole purpose of circumventing the speedy trial statute. *34677 In prosecution for willful refusal to comply with order of fire commission, delay of 98 days between defendant's arraignment on original accusatory instrument and filing of superseding information did not violate defendant's right to speedy trial where two adjournments were consented to by defense and remaining delay was attributable to pre-trial motion practice. People v Cibro Oceana Terminal Corp. (1990) 148 Misc 2d 149, 559 NYS2d 782. The speedy trial statute was held to have commenced with the return of superseding indictments, in State v Mills (1983) 307 NC 504, 299 SE2d 203, where the court, affirming the defendant's conviction on three counts of first-degree murder and one count of conspiracy to commit murder, found that the superseding indictments were appropriate, were obtained in good faith, and were returned before a plea of guilty or the commencement of the trial. The superseding indictments were obtained to correct an error in the murder date appearing in the original indictments. The court concluded that the new indictments were necessary where the date could have been critical to the state's ability to prove the defendant's guilt if the defendant chose to offer evidence at trial to establish an alibi defense. The court noted that the correction of the indictments was also relevant to insure protection

of the defendant from double jeopardy.

In State v Moore (1981) 51 NC App 26, 275 SE2d 257, the court held that the speedy trial period commenced to run in relation to the superseding indictment where the obtaining of the new indictment appeared to have been both appropriate and in good faith. The initial indictment against the defendant charged that the alleged offenses occurred on a certain date despite the fact that all the evidence was to the effect that the offenses occurred approximately 26 days later. Therefore, a new indictment was issued specifying the proper dates and this indictment superseded the original indictment, which by statute had to be dismissed. The court concluded that the state had valid reason to obtain a new indictment where the dates set forth in the indictment could have been critical to its capacity to prove its case if, for example, the defendant had offered evidence tending to establish an alibi defense. However, the court determined that the defendant was entitled to a new trial due to the introduction of inadmissible evidence. In Commonwealth v Brocklehurst (1980) 491 Pa 151, 420 A2d 385, the court, affirming a conviction for burglary, held that the speedy trial rule commenced to run from the filing of the second complaint where the initial complaint was withdrawn by the prosecution after the defendant charged that it was fatally defective since it named the wrong person as the accused. At the time of the defendant's arrest, it was discovered that an incorrect middle name was included in the complaint. At his preliminary hearing the defendant objected to an amendment correcting the middle name. The prosecution then withdrew the complaint and immediately filed a new one that included the defendant's proper name. The court stated that the only complaint filed against the defendant was the second complaint since only it properly named the defendant as the accused and that therefore the speedy trial rule became operable only with the filing of the second complaint. In prosecution for aggravated robbery in which on state's motion, original indictment was dismissed for alleging that actions of defendant were "with the effective consent" of victim instead of "without the effective consent", time period for speedy trial purposes on indictment filed two days later commenced on date of dismissal. Garcia v State (1984, Tex App Corpus Christi) 673 SW2d 696. [c] Held to be tolled

Speedy trial rule was tolled and Defendant's right to speedy trial was not violated by withdrawal of original complaint and subsequent refiling, where state withdrew original complaint in midst of protracted extradition proceedings to correct misspelling of defendant's name and to drop charge of conspiracy, where both corrections were in response to problems raised by U.S. Department of State and were intended to expedite defendant's extradition, and where both corrections were necessary to remedy substantive defects in original complaint. Commonwealth v De Marco (1984) 332 Pa Super 315, 481 A2d 632.

s 8. Where prosecution witness was alleged to be unavailable [a] Held to continue to run

State v Stone (1982) 65 Hawaii 308, 651 P2d 485, s 8[a], is overruled by State v Balauro (1992) 73 Hawaii 70, 828 P2d 267, s 5[b], to extent it is inconsistent with rule of penal procedure excluding period of time when no charges that could have been joined with dismissed charges are pending against defendant and providing that time accrued on first charge is applicable to second charges. *34678 The courts in the following cases, wherein the prior accusatory instruments were terminated by the prosecution because of the alleged unavailability of witnesses for the state, held that the speedy trial periods were not interrupted by such termination that resulted in the bringing of subsequent accusatory instruments. In State v Washington (1981) 273 Ark 82, 617 SW2d 3, the court, affirming an order dismissing charges of first-degree battery against the defendants for failure to bring them to trial within three terms of court as required by rule, held that the speedy trial rule provisions were not tolled by a nolle prosequi of the original information and the refiling of the same charges where the prosecuting attorney obtained dismissal of the original information when he could not obtain the cooperation of a material witness. The court stated that the action by the state of entering a nolle prosequi or dismissing with leave to refile did not toll the running of the speedy trial provisions absent a showing of good cause for the period of delay. The court concluded that in this case the state had apparently used the procedure of taking a nolle prosequi to bypass the speedy trial rule. Under provisions of speedy trial rule, when state enters a nolle prosequi, speedy trial period continues to run and state may not refile charges based on same conduct after period has expired. Accordingly, state would not be permitted to refile attempted murder charges against defendant where victim was shot on February 8, 1988, and rendered comatose; where defendant was charged with second-degree murder, was arrested in Illinois and was then extradited to Florida on March 30, 1988; where, pursuant to speedy trial rule, defendant made written demand for speedy trial on July 22, 1988; where, 33 days before expiration of speedy trial period, state entered nolle prosequi, noting that victim was comatose and there were no eyewitnesses; where defendant was then transported to Tennessee and imprisoned for escape; and where, later, Florida authorities located two eyewitnesses, victim emerged from his coma and, long after initial speedy trial period had run, state filed information charging defendant with attempted first-degree murder of victim. State v Agee (1993, Fla) 622 So 2d 473, 18 FLW S 391 (while defendant was in Tennessee prison, his witnesses might have relocated and their memories faded, and other evidence might have grown stale or disappeared; to allow state to prosecute under these circumstance would violate intent of rule).

Conclusion that state nolle prossed to avoid speedy trial rule was supported by following facts: at calendar call, with approximately 10 days remaining of 175 days provided by speedy trial rule, state announced it was not ready for trial because victim was in Puerto Rico, and moved for continuance and extension of speedy trial; when these motions were both denied state nolle prossed and, two weeks later, refiled same charge. Accordingly, defendant was entitled to discharge based on his right to speedy trial. State v McFadden (1993, Fla App -4) 622 So 2d 483, 18 FLW D 1511. Affirming an order dismissing an indictment for pretrial delay, the court, in State v Stone (1982) 65 Hawaii 308, 651 P2d 485, held that it was not error to grant the motion to dismiss where the defendant was not brought to trial within 6 months of his arrest as provided by the speedy trial rule. The original assault charges were dismissed on motion of the prosecution after it was learned that one of the assault victims had died. Over a year later the defendant was indicted on assault charges involving the same incident. Noting that there were no periods of time that were excludable from the 6-month period, the court impliedly held that the speedy trial period ran from the initial arrest and was not interrupted by the dismissal and reindictment. Prosecutor's dismissal of tab charges and filing of formal complaint alleging same charges, following trial court's denial of continuance sought by prosecution to permit attendance of its only witness at trial, did not cause speedy trial period to start running afresh. State v Kasper (1987, Minn) 411 NW2d 182. [b] Held to be tolled

In the following cases in which the prior accusatory instruments were terminated by the prosecution when prosecution witnesses were allegedly unavailable, the courts held that the applicable speedy trial periods were tolled between the termination and the proceedings under subsequent accusatory instruments. Period from when prosecution entered nolle prosequi on original indictment, on ground that alleged victim was unavailable, until grand jury returned second indictment was deducted from speedy trial period since, during that period, defendant was neither incarcerated nor subjected to other substantial restrictions on his liberty. State v Johnson (1989, Del Super) 564 A2d 364. *34679 Refiling of indictment for murder did not offend speedy trial rule that allowed for window period, after original indictment for first-degree murder and first degree arson had been nolle prossed because of state's inability to locate witnesses six years earlier, where running of speedy trial period had been tolled with dismissal of indictment, in absence of showing that dismissal was tactical or in bad faith. State v Dorian (1993, Fla App -3) 619 So 2d 311, 18 FLW D 856. In People v Christensen (1983) 113 Ill App 3d 938, 69 Ill Dec 762, 448 NE2d 222, revd on other grounds 102 Ill 2d 321, 80 Ill Dec 302, 465 NE2d 93, the court stated that the speedy trial clock would be tolled

where the initial indictment was nol prossed by the state when an important witness disappeared. However, the court concluded that the speedy trial statute was not violated since the period of time during which the defendant was incarcerated in a federal prison outside the state was not to be included when computing the speedy trial time. Overruling an earlier case, [FN11] the court in Bentley v State (1984, Ind) 462 NE2d 58, held that only that period during which an accused was held under an original indictment which was dismissed due to the unavailability of a witness is chargeable to the state under a speedy trial statute when a second indictment is returned. Therefore, the court concluded that a person accused of armed robbery was given a speedy trial where he was brought to trial 11 months after a second indictment was returned where he was held for only 1 month under the original indictment before it was dismissed. Reversing a conviction for aggravated assault, the court, in State v Hunt (1982) 8 Kan App 2d 162, 651 P2d 967, held that the time elapsed between the defendant's arraignment under the first information and the dismissal of that information was to be included in computing the speedy trial period where the dismissal was obtained by the state without a showing of necessity. The state requested the dismissal on the ground that one of its witnesses could not be located. A new information was subsequently obtained that, following amendment, charged the defendant with the same aggravated assault as well as an additional charge of unlawful use of weapons. Noting that the missing witness did not testify at trial and that the prosecution nonetheless obtained a conviction, the court concluded that the missing witness' testimony, although it could have strengthened the state's case, was clearly not essential and that the dismissal of the first information was therefore not based on necessity. The court added that the state could have requested a continuance to extend the time limits due to the temporary unavailability of material evidence. However, the court affirmed the conviction for unlawful use of weapons since that charge was not included in the first information and the speedy trial period on that charge therefore ran only from the arraignment under the second information. [FN12] Time between prosecution's dismissal of information, because key witness could not be found, and its refiling of information, after witness was apprehended, was not includable in computing speedy trial period. State v Batiste (1989) 231 Neb 481, 437 NW2d 125 (diverged from by State v Pettit, 233 Neb 436, 445 NW2d 890). Affirming a conviction for aggravated and simple assault, the court, in Commonwealth v Navarro (1982) 499 Pa 279, 453 A2d 308, held that the 180-day time period under the speedy trial rule was tolled on the date of withdrawal of the first written complaint where there was no obvious attempt by the prosecution to evade the speedy trial requirements. The defendant was charged in the original complaint with assault, but that complaint was withdrawn by the prosecution when it learned that the victim of the assault had died of unrelated causes. A second complaint charging the same crime based on the same incident was filed 115 days after the withdrawal of the first complaint. Apparently concluding that the reason for the withdrawal of the first complaint was valid, the

court held that the 180-day speedy trial period stopped running when the complaint was withdrawn since the withdrawal effectively terminated that complaint. In prosecution for driving under influence of intoxicating liquor, in which prosecution was unable to proceed due to unavailability of witness, period of time between dismissal of charge without prejudice and new citation would be excluded from period of delay for speedy trial purposes, since defendant is no longer accused after dismissal and therefore has no constitutional speedy trial rights during interim period. State v Snide (1984) 144 Vt 436, 479 A2d 139. *34680 In drug prosecution, calculation of time defendant was charged with crime before trial did not include time between dismissal due to failure to locate witness and refiling of information. Wehr v State (1992, Wyo) 841 P2d 104. [c] Held to run anew

The courts in the following cases, in which the prior accusatory instruments were terminated by the prosecution due to the alleged unavailability of prosecution witnesses, held that the applicable speedy trial period began to run anew under the subsequent accusatory instruments. Affirming a conviction for burglary, the court, in State v Goodmiller (1963) 86 Idaho 233, 386 P2d 365, held that the defendant had not been denied his statutory right to a speedy trial where he had been brought to trial at the first term commencing after the filing of the second information. The first information was dismissed on motion of the prosecuting attorney on the ground that a material witness was unavailable. The defendant was at liberty on bail under the first information and his bail was exonerated at the time of the dismissal. Holding that the absence of a material and essential witness was "good cause" for the postponement of the prosecution, the court impliedly held that the filing of the subsequent information commenced a new running of the speedy trial statute. Reversing a judgment dismissing an information charging the defendant with rape, aggravated battery, and aggravated robbery, the court, in State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891, cert den (US) 83 L Ed 2d 34, 105 S Ct 88, held that the statutory speedy trial period began to run from the time of the defendant's arraignment under the subsequent information where the original information was dismissed at the request of the prosecution on a showing of necessity. After the defendant was arraigned on the first information, a number of continuances were granted to both the defense and the prosecution, culminating in a final request by the state for a continuance based on the difficulty in obtaining two central witnesses for the trial. Both witnesses were doctors who were vital to the chain of forensic evidence in the case. One doctor was scheduled to take his medical board examinations in another state at the time of trial, and the other physician had a long-standing commitment to attend a professional

meeting in another state. The state's motion for a continuance was denied on the ground that the guidelines for handling criminal cases prevented a further continuance. However, the state's motion to dismiss the information without prejudice was granted, with a finding that the defendant would not be prejudiced by such action and that the prosecution was not attempting to evade the speedy trial requirements of the statute. Four days later, the identical charges were refiled and the defendant was arraigned on the second information. Prior to the rescheduled trial date, the defendant moved to dismiss the information on the ground that he had been denied his right to a speedy trial where the accumulated, unexcused delays from the time of the arraignment under the first information exceeded 180 days. The motion to dismiss was granted despite the claim by the prosecutor that the dismissal of the first information was a matter of necessity. Noting that a finding that the state had made a showing of necessity for the dismissal was implicit in the record and in the findings made, the court concluded that the dismissal was necessary where the state properly concluded that its witnesses, even though under subpoena, might not appear on the scheduled trial date in the face of the serious conflicting commitments. The court pointed out that if the state proceeded with trial and either one of the witnesses failed to appear, the state's case would have been badly crippled. The court added that in such an eventuality the power of the state to cite the witnesses for contempt would not fill the resulting void in the presentation of the criminal case against the defendant. The court pointed out that professional examinations, such as bar, medical, and dental examinations, being given only at stated times and places, an aspiring professional might well be tempted to ignore a subpoena that conflicted with such examinations, even in the face of a probable contempt citation. [FN13] See State v Snide (1984) 144 Vt 436, 479 A2d 139, s 8[b].

s 9. Where prior accusatory instrument was filed in wrong court In the following cases wherein the prior accusatory instrument was terminated by the prosecution and the court in which that instrument was filed lacked jurisdiction to prosecute the case, the courts held that the applicable speedy trial period commenced anew on the filing of the subsequent accusatory instrument in another court. *34681 Denying a petition for a writ of habeas corpus, the court, in Ex parte Snyder (1942) 110 Colo 35, 129 P2d 672, held that the statutory speedy trial period was computed from the filing of an information rather than a previously dismissed complaint charging the same felony where the justice of the peace court in which the complaint was filed lacked jurisdiction to adjudge the ultimate guilt or innocence of the defendant. Pursuant to the original complaint the defendant was admitted to bail pending a preliminary examination. Prior to the date of the preliminary examination, the complaint was dismissed on the prosecution's motion. The defendant was thereafter charged in the subsequent information. Noting that no preliminary examination was ever held and that the defendant was never bound over to appear in the district court, the court concluded that there was no starting point for the computation of the statutory period of permissible delay in the district court.

In Commonwealth v Frank (1979) 263 Pa Super 452, 398 A2d 663, the court held that the speedy trial period commenced to run from the date the second complaint was filed rather than from the date of the first complaint where the first complaint was filed in another county and was then dismissed by the prosecution on the ground that jurisdiction did not lie in that county since the crimes took place in the county in which the second complaint was filed. s 10 Where prior accusatory instrument was terminated with leave to reinstate The courts in the following cases, wherein the prior accusatory instruments were terminated by the prosecution with leave to reinstate, held that the applicable speedy trial period ran continuously from the time of the prior accusatory instrument and was not interrupted by the termination. See United States v May (1985, CA6 Mich) 771 F2d 980, s 6.

See United States v Nesbitt (1988, CA7 Ind) 852 F2d 1502, cert den (US) 102 L Ed 2d 798, 109 S Ct 808, s 5[c]. Reversing a conviction for armed robbery, the court, in People v Nelson (1962) 25 Ill 2d 38, 182 NE2d 704, held that the defendant's statutory speedy trial right was violated where he was not brought to trial within 4 months after the date of incarceration for a prior conviction. Following the defendant's conviction on unrelated charges, the state's motion to strike the indictment in this case with leave to reinstate was granted. Following the reversal of the conviction on the unrelated charges, the prosecution moved to reinstate the stricken indictment and the defendant was subsequently tried and convicted on that indictment. Acknowledging that if a delay in trial was caused or consented to by the defendant, the statute would be tolled, the court rejected the contention that the defendant in this case waived his speedy trial right when he failed to object to the prosecution's motion to strike with leave to reinstate since the defendant did not indicate that he was willing to consent to an indefinite tolling of the statute and the significance of his failure to object to the state's motion was not explained to him of record. Affirming a judgment granting a defendant's motion for discharge on the ground that he was denied his statutory right to a speedy trial, the court, in People v Bauer (1979) 70 Ill App 3d 537, 27 Ill Dec 50, 388 NE2d 1013, held that the speedy trial statute was not tolled following dismissal of the original information where the prosecution obtained the dismissal with leave to reinstate. The prosecutor made a motion to dismiss the information with leave to reinstate after a material witness disappeared. After the witness was located, he testified before the grand jury and an indictment was returned against the defendant. The court also noted that it could not determine from the record that the state had not attempted to evade the speedy trial statute where it failed to petition for a 60-day continuance permitted by statute and simply dismissed the action instead.

Affirming a judgment dismissing an indictment on speedy trial grounds, the court, in People v Rodgers (1982) 106 Ill App 3d 741, 62 Ill Dec 165, 435 NE2d 963, held that the 160-day statutory time period for defendants on bail which took effect when the defendant demanded a trial under the first indictment also applied to the subsequent indictment. The defendant was originally indicted in Cook County for possession of a stolen vehicle in that county. A motion by the state to strike the charges with leave to reinstate was subsequently granted. At the same time, the defendant demanded an immediate trial. The charges were never reinstated and the defendant's arrest record was subsequently expunged on his motion. Almost 1 year after the expungement, the defendant was indicted in Kane County for possession of the same vehicle in Kane County. The court concluded that the Kane County charge was a restatement of the original Cook County charge and that inquiry into the defendant's allegation of speedy trial violation must consider the time that had elapsed since the first charge. Stating that the speedy trial statute was not tolled by the stiking of a charge with leave to reinstate, the court determined that the indictment was properly dismissed since more than 160 days had passed since the defendant's demand for trial. *34682 Charges of theft and conspiracy to commit theft were properly dismissed for violation of speedy trial provisions where state had previously sought leave to strike charges with leave to reinstate, while appealing dismissal of forgery counts and joinder of remaining counts; joinder issue was not appealable since it was interlocutory order, and state failed to show that order dismissing forgery charges affected its ability to prosecute theft and conspiracy charges; thus, no tolling of speedy trial period took place as result of appeals. People v East-West Univ. (1994, Ill App 1st Dist) 202 Ill Dec 55, 637 NE2d 594. See State v Lamb (1988) 321 NC 633, 365 SE2d 600, s 11. Other particular circumstances The courts in the following cases, wherein the prior accusatory instruments were terminated by the prosecution and factors existed other than those treated in s s 6-10, supra, held that the applicable speedy trial periods commenced to run anew with the introduction of the subsequent accusatory instruments. Time period from filing of superseding indictment adding codefendant to issuance of order detaining codefendant was excludable from 70-day Speedy Trial Act (STA) period for both codefendant and defendant. 18 U.S.C.A. s 3161(h). U.S. v. Castillo-Pacheco, 53 F. Supp. 2d 55 (D. Mass. 1999). See United States v Gonzales (1990, CA5 Tex) 897 F2d 1312, s 5[a]. s 5[b].

In prosecution of defendant for conspiracy to embezzle union pension plan funds and for making false statements to federally insured bank, period of continuances granted by trial court after government's issuance of superseding indictment tolled statutory 70-day period; such tolling served ends of justice where plea negotiations with defendant had failed and government had new evidence to submit in conjunction with superseding indictment. United States v Williams (1994, CA5 Miss) 12 F3d 452. Defendant convicted of narcotics and firearms offenses was not denied his right to speedy trial on firearms and drug counts because superseding indictment alleging those offenses was not filed under 200 days after his arrest on drug conspiracy charge alleged in original indictment and combined for trial with offenses charged in superseding indictment. Statute requiring that indictment or information be filed within 30 days from date on which individual was arrested on charges was not applicable, because defendant was already in custody being detained under first indictment when second indictment containing additional charges was filed. Therefore, there actually was no arrest in connection with subsequent charges, hence no terminus a quo for counting maximum permissible delay between time of arrest for filing indictment relating to charges. United States v Beal (1991, CA8) 940 F2d 1159. Fact superseding indictment was filed more than 30 days after defendants were arrested did not mean that, under the 30-day rule of the Speedy Trial Act, the additional charges it contained were not timely filed and had to be dismissed; Speedy Trial Act did not prevent government from obtaining a superseding indictment more than 30 days after the arrest to add different charges than those contained in the original indictment. 18 U.S.C.A. s 3161(b). U.S. v. Feng, 25 Fed. Appx. 635 (9th Cir. 2002). District court was not authorized to extend to 180 days the 70-day limit for retrial under the Speedy Trial Act following declaration of mistrial by reason of defendant's interlocutory appeal between trials on basis that passage of time had led to unavailability of witnesses. 18 U.S.C.A. s 3161(e). U.S. v. Pitner, 307 F.3d 1178 (9th Cir. 2002). Lapse of approximately two years between date of arrest under first indictment and trial under second indictment did not deny murder defendant right to speedy trial where not more than one and one-half years of intervening time was attributable to state, defendant, who was represented by able counsel, although claiming past denial of speedy trial, did not make known at any time that he desired speedy trial in future, some delay was caused by defendant's motion for psychiatric examination, and some delay was caused by trial court's and parties' agreement to await outcome of decisions by United States Supreme Court, Alabama Supreme Court and Alabama Court of Criminal Appeals in case concerning appropriate instructions to avoid constitutional infirmity of state statute relating to death penalty and life imprisonment without parole. Ringstaff v. State, 451 So. 2d 375 (Ala. Crim. App. 1984), related reference, 861 F.2d 644 (11th Cir. 1988), reh'g granted, (Feb. 6, 1989)

and on reh'g, 885 F.2d 1542 (11th Cir. 1989). *34683 Affirming a conviction for three counts of abortion, the court, in People v Wilkes (1960, 2d Dist) 177 Cal App 2d 691, 2 Cal Rptr 594, held that the 60-day period for bringing the defendant to trial commenced to run from the filing of the subsequent information. The defendant was originally charged in an information with attempted abortion by supplying and administering a "vaginal pack." A motion to amend the information by interlineation by substituting the words "a substance" in place of "vaginal pack" having been denied, the prosecution successfully moved to dismiss the original information. A new information was subsequently filed charging the defendant with three counts of abortion and containing the substituted words. Noting that the dismissal of a felony charge was not a bar to another prosecution for the same offense, the court concluded that the time period under the speedy trial statute ran from the reinstatement of the charges. Affirming a conviction for robbery, the court, in People v Allen (1963, 3d Dist) 220 Cal App 2d 796, 34 Cal Rptr 106, held that the filing of a new indictment charging a new crime reinstated the speedy trial period. The defendants were originally charged by information with attempted robbery and assault by means of force likely to produce great bodily injury. The prosecution's motion to dismiss the information in order to charge the defendants with robbery was granted over the defendant's objection. The defendants were thereafter indicted for robbery and the same degree of assault. The court concluded that the institution of a new proceeding in the form of an indictment charging robbery rather than an attempt reinstated the 60-day period. Affirming robbery convictions, the court, in People v Faulkner (1972, 1st Dist) 28 Cal App 3d 384, 104 Cal Rptr 625 (disapproved on other grounds People v Hall, 28 Cal 3d 143, 167 Cal Rptr 844, 616 P2d 826 (superseded by statute as stated in People v Sweeney (4th Dist) 150 Cal App 3d 553, 198 Cal Rptr 182, hear gr by sup ct) and (superseded by statute as stated in People v Callegri (3d Dist) 154 Cal App 3d 856, 202 Cal Rptr 109) and (superseded by statute as stated in People v McGriff (2d Dist) 158 Cal App 3d 1151, 205 Cal Rptr 232)) and (disapproved on other grounds People v Bustamante, 30 Cal 3d 88, 177 Cal Rptr 576, 634 P2d 927), held that the filing of a subsequent felony information reinstated the 60-day period under the former speedy trial statute. The original information was dismissed by the trial court in the interest of justice on the motion of the district attorney. The court concluded that the defendant was brought to trial within the statutory period where the dismissal in furtherance of justice constituted good cause within the meaning of the former speedy trial statute and the filing of a new information reinstated the 60-day period. Dismissal without prejudice of securities fraud charge and newly instituted charges that added racketeering counts did not violate defendant's right to speedy trial where there was no proof of prosecutorial bad faith, new case was filed two days before prosecution requested that first case be dismissed, and arraignment was held and trial set within speedy-trial deadline for first case; subsequent delays were not caused by prosecution. People v Kraemer (1990,

Colo App) 795 P2d 1371. In case wherein prosecution voluntarily dismissed burglary information more than 180 days after filing, it would not be precluded from subsequent filing of misdemeanor theft information against defendant, where much of initial delay was attributable to

defendant's request for continuance. Stewart v State (1985, Fla App -1) 470 So 2d 101, 10 FLW 1394, ctfd ques ans, approved (Fla) 491 So 2d 271, 11 FLW 322. Trial court lacked discretion to continue trial beyond speedy trial period after state filed new information covering same offenses with which defendant had previously been charged; defense counsel requested time to review new information but did not request continuance. West's F.S.A. RCrP Rule 3.191. Dechaine v. State, 751 So. 2d 100 (Fla. Dist. Ct. App. 4th Dist. 1999). Defense continuance during pendency of original information amounted to a waiver of defendant's speedy trial rights as to a subsequently filed information with new charges that arose out of the same incident that formed basis of original charge, and thus, defendant's failure to invoke a new demand for speedy trial did not start the speedy trial clock running again. West's F.S.A. RCrP Rule 3.191(a, b). Atkins v. State, 785 So. 2d 1219 (Fla. Dist. Ct. App. 4th Dist. 2001). *34684 In People v Woodruff (1981) 88 Ill 2d 10, 58 Ill Dec 869, 430 NE2d 1120, the court, reinstating convictions for armed robbery and home invasion, held that the statutory speedy trial period as applied to a juvenile defendant commenced to run from the time of the order authorizing the juvenile to be prosecuted as an adult and not from the time that the juvenile was originally taken into custody and charged as a juvenile. The original petition charging the defendant with being a delinquent minor alleged that he committed the offenses of armed robbery, armed violence, and home invasion. The state's motion to have the defendant tried as an adult was granted and an order was subsequently entered authorizing such a trial. The court concluded that the 120-day speedy trial period did not commence in juvenile cases until the court entered an order authorizing prosecution of the juvenile as an adult since the speedy trial statute refers to persons held in custody for an alleged offense, and in a proceeding under the juvenile court act, the minor is not held in custody for an offense. However, in People v Sanders (1980) 86 Ill App 3d 457, 41 Ill Dec 453, 407 NE2d 951, the court, affirming a conviction for two counts of murder, held that the defendant was not denied his statutory right to a speedy trial where the 120-day statutory period within which the defendant must be brought to trial was tolled between the nolle prosequi of the first indictment and the defendant's arrest more than 1 year later. The prosecution requested the nolle prosequi of the first indictment after it determined that it lacked sufficient competent evidence to convict the defendant. The defendant was thereupon released. Approximately 1 year later the defendant was again indicted for the same murders and the warrant was issued for his arrest, but he was not apprehended for another 8 months. Noting that when a charge is nolle prossed and the defendant released from custody without bond, there is no charge pending against him and that the speedy trial statute runs only when a charge is pending against a defendant, the court concluded that the statute was tolled during the period between the defendant's release on the first

indictment and his arrest under a subsequent indictment. Distinguishing this situation from that of an SOL (charges stricken with leave to reinstate), where the rule is that the statutory period continues to run after that disposition, the court concluded that there were sufficient differences between an SOL and a nolle pros to find that the statutory period was tolled by a nolle pros where the defendant was neither in custody nor on bail or recognizance. Nolle prosequi obtained by state, followed by reindictment on identical charges, did not violate defendants' speedy trial rights where there was no indication that state's acts were vindictively motivated and where defendants were not in custody, on bond, or recognizance during period between granting of nolle prosequi, and speedy trial statute therefore did not apply to them. People v Freedman (1987, 1st Dist) 155 Ill App 3d 469, 108 Ill Dec 165, 508 NE2d 326. Motion by state to nol-pros escape charge against defendant tolled statutory period for speedy trial statute where state made motion at sentencing hearing which defendant was given natural life sentence for murder conviction, not to avoid speedy trial statute but rather in belief that it would not be in interest of justice to prosecute escape charge in view of life sentence. People v Dace (1988, 3d Dist) 171 Ill App 3d 271, 121 Ill Dec 210, 524 NE2d 1258, app den (Ill) 125 Ill Dec 225, 530 NE2d 253. No showing was made that state obtained nolle prosequi on original charge against defendant seeking to gain some technical advantage over defendant, and speedy trial term was tolled until identical charge was refiled where state nolled charges in order to obtain chemical analysis of substance defendant had allegedly possessed, after trial court denied continuance, and where, though state obtained analysis 11 days after nolle prosequi and did not refile charges for some eight months, delay was result of time constraints imposed by high volume of cases, and purposes of speedy trial statute were not frustrated. People v Decatur (1989, 1st Dist) 191 Ill App 3d 1034, 139 Ill Dec 124, 548 NE2d 509, app den (Ill) 142 Ill Dec 884, 553 NE2d 398. In prosecution for possession of cocaine, subsequent indictment roughly ten and one-half months after arrest and six months after nolle prosequi order and defendant's trial demand did not violate defendant's right to speedy trial where trial court denied state's motion for continuance, which state sought because laboratory analysis of alleged cocaine was not available. People v Alvelo (1990, 1st Dist) 201 Ill App 3d 496, 147 Ill Dec 131, 559 NE2d 131. *34685 State's petition for writ of certiorari to the United States Supreme Court was not an "appeal" within the meaning of rule excluding appeal by state from speedy trial period and, therefore, did not automatically toll the running of the 120-day speedy-trial period upon docketing of appellate court's mandate. S.H.A. 725 ILCS 5/103-5; Sup. Ct. Rules, Rule 604(a)(4). People v. Quick, 321 Ill. App. 3d 392, 255 Ill. Dec. 157, 748 N.E.2d 1227 (3d Dist. 2001). In most situations, the State's decision to enter nolle prosequi on charges against a defendant tolls the running of the statutory speedy-trial period because the pending charge is terminated and the

refiling of the charge is the institution of a new proceeding; however, a nolle prosequi will not toll the statutory speedy-trial period if the State uses it to cause delay or to

avoid statutory limitations. S.H.A. 725 ILCS 5/103-5(a). Ill. Dec. 263, 769 N.E.2d 1100 (App. Ct. 4th Dist. 2002).

People v. Hillsman, 264

In prosecution for second-degree burglary in which original information was dismissed on state's motion in the interest of justice, new charges filed nearly one year after original information started 90day speedy-trial period anew, despite fact that charges were identical to those originally dismissed. State v Fisher (1984, Iowa) 351 NW2d 798. Trial court properly found good cause for delay in bringing defendant to trial, under statute providing that defendant must be brought to trial within 90 days unless there is good cause for delay, where first information was filed on January 21, 1991, charging defendant with conspiracy to deliver or delivery of cocaine, where first information was dismissed on March 1, 1991, as result of negotiations between defendant and state whereby defendant was to work as informant and charges were to be dismissed, and where defendant did not work as informant and on June 18, 1991, another information was filed charging defendant with same charge. State v Ruiz (1992, Iowa App) 496 NW2d 789. Prosecution made adequate showing of necessity for having voluntarily dismissed counts of criminal complaint, thereby in effect tolling speedy trial period, where, since state could not appeal dismissal in criminal case of some counts of multi-count complaint while remainder of counts remained pending in trial court, state had otherwise faced prospect of losing effective right of appeal. State v Clovis (1993) 254 Kan 168, 864 P2d 687. In prosecution for forgery and uttering, in which defendant had been indicted on two different occasions for same offenses, and first indictment had been dismissed without prejudice following defendant's request for disposition of detainer because state failed to comply with intrastate detainer statute, speedy trial period commenced at date on which detainer was filed on first indictment rather than date on which first indictment was filed; accordingly, defendant was denied his right to speedy trial where 18 months elapsed between date on which detainer was filed and date of conviction, where total length of delay was substantial, approximately 50 percent of delay was attributable to State's neglect in failing to take action on defendant's request for disposition on intrastate detainer, and defendant was potentially prejudiced by delay. Lee v State (1985) 61 Md App 169, 485 A2d 1014, cert den 303 Md 115, 492 A2d 617. Nolle pros by prosecution, which resulted from fact that victim of assault and attempted murder who was only eyewitness refused to testify, and from introduction by defense of victim's notarized statements exonerating defendant from any wrongdoing, was in good faith, and therefore time preceding second indictment would not be considered in determining whether there was prejudicial delay; uncontroverted evidence was presented later that defendant threatened victim's life and life of her child and mother if she testified against him. Clark v State (1993) 97 Md App 381, 629 A2d 1322.

Prosecutor's good faith mistake that police officer would be unable to identify the defendant was valid reason for delay that resulted from order of nolle prosequi, and, thus, reindictment did not violate constitutional right to speedy trial. U.S.C.A. Const. Amend. 5; Code 1972, s 99-17-1. State v. Shumpert, 723 So. 2d 1162 (Miss. 1998). *34686 Defendant convicted of attempted aggravated felonious sexual assault was not denied his right to speedy trial under state or federal constitutions based on fact that there was 28-month delay between filing of original indictment, which was concluded when prosecution entered nolle prosequi and defendant's trial, which occurred approximately 13 months after second indictment was filed, where defendant did not assert his speedy trial rights, and suffered no prejudice as result of delay. State v Adams (1991, NH) 585 A2d 853. Denying a defendant's motion to declare a speedy trial statute unconstitutional, the court, in People v Overton (1976) 88 Misc 2d 531, 389 NYS2d 253, held that the speedy trial period was properly calculated from the date of the filing of the subsequent misdemeanor accusatory instrument where the statute provided that a 90-day speedy trial period commenced from the filing of a misdemeanor accusatory instrument that replaced an initial felony complaint. The defendant was originally arraigned on a felony complaint charging assault in the second degree and related offenses. Subsequently, the original charges were reduced to the misdemeanors of harassment and criminal mischief in the fourth degree. The statute provided in such instances that a new 90-day speedy trial period began to run from the filing of the misdemeanor instrument, provided, however, that in no event was a speedy trial period to run longer than 6 months from the filing of the original felony complaint. The court had denied a prior motion to dismiss on speedy trial grounds since, at the time the motion was made, the 90-day period permitted by statute, as calculated from the date of the filing of the new accusatory instrument, had not expired. Denying the instant motion based on constitutional grounds, the court rejected the defendant's claim that he was denied his constitutional right to equal protection by the statute and due process. Adjournment granted at the People's request to obtain superseding indictment should not have been charged to the People for purposes of speedy trial calculation, where the People had declared their readiness on the original indictment. McKinney's CPL s 30.30. People v. Anderson, 676 N.Y.S.2d 549 (App. Div. 1st Dep't 1998). People's announcement of readiness for trial with respect to first indictment in which defendant was charged with sex offenses satisfied requirements of speedy trial statute with respect to superseding indictment, where superseding indictment was directly derived from felony complaint as reflected in first indictment, and crimes charged were based on several groups of acts so closely related as to constitute a single criminal incident, even though second indictment added a new count and expanded dates of alleged incidents. McKinney's CPL s 30.30. People v. Stone, 697 N.Y.S.2d 212 (App. Div. 4th Dep't 1999).

Reversing an order dismissing an indictment on speedy trial grounds, the court, in State v Gross (1984) 66 NC App 364, 311 SE2d 41, review den 310 NC 746, 315 SE2d 706, held that the speedy trial statute commenced to run from the time of the subsequent indictment where the original charges were dismissed by the state due to the lack of a report from the investigating officer. The dismissal of the indictment took place approximately 156 days after the date of the defendant's arrest under the original charges but only 16 days after the date of indictment. Relying on State v Koberlein (1983) 309 NC 601, 308 SE2d 442 (dismissal based on failure of state to proceed with probable cause hearing due to unavailability of prosecution witness held same as dismissal based on finding of no probable cause), infra s 20, the court concluded that a dismissal taken by the state for lack of a report from the investigating officer was likewise analogous to a dismissal based on the state's failure to proceed with a probable cause hearing and that, under the speedy trial statute, a dismissal based on a finding of no probable cause permitted the statutory time to be computed from the time of the subsequent indictment rather than the time of the defendant's arrest under the original charges. Dismissal of first indictment by district attorney was proper, and terminated all proceedings against defendant, and reindictment 11 months later did not violate defendant's rights under Speedy Trial Act where no criminal proceedings occurred between indictments, and defendant was not subject to prosecutorial control; though defendant's bail bond should have been discharged, failure to do so did not prejudice defendant where she was not required to appear or render herself amenable to court orders or process. State v Lamb (1987) 84 NC App 569, 353 SE2d 857, stay gr 319 NC 407, 354 SE2d 708 and review gr 319 NC 407, 354 SE2d 721 and writ granted (NC) 354 SE2d 722 and affd (1988) 321 NC 633, 365 SE2d 600. *34687 Enrollment of defendant in accelerated rehabilitative disposition program was not conviction, nor was successful completion of program equivalent to finding of innocence, that would preclude prosecution on second complaint of vehicular homicide. Commonwealth v Davies (1985) 342 Pa Super 318, 492 A2d 1139. Though state timely announced ready on theft indictment, that announcement did not carry over to subsequent indictment for offense of burglary which was brought after theft indictment was dismissed, even though both indicted offenses had arisen out of same transaction, and since burglary indictment was not returned until 512 days after commencement of criminal action defendant was entitled to dismissal of indictment on speedy trial grounds. Carr v State (1984, Tex Crim) 733 SW2d 149. Any announcement of readiness by prosecution to proceed would toll running of speedy trial time period until time of filing of subsequent indictment. Prosecution was thus lawfully able to delay trial of incarcerated defendant for 285 days by filing four consecutive identical indictments, and announcing "readiness" after each one, despite statute requiring trial within 120 days. Washington v State (1984, Tex App Dallas) 677 SW2d 142.

No speedy trial violation occurred by state's subsequent reindictment for aggravated rape following earlier indictment simply charging defendant with rape, since state's announcement of ready from earlier indictment constituted announcement of ready on second and third indictments arising out of same transaction, and since there was no evidence that state delayed trial other than delays occasioned by time involving and obtaining "rap sheet," penitentiary packets, re-indictment by Grand Jury, discussions concerning polygraph test, and agreed continuances. Presley v State (1985, Tex App Fort Worth) 686 SW2d 764. In prosecution in which (1) defendant was indicted for murder and convicted of involuntary manslaughter but jury was unable to reach agreement on punishment and mistrial was declared, (2) in retrial under original murder indictment, defense motion for mistrial on double jeopardy grounds was erroneously granted, and (3) defendant was reindicted on charge of involuntary manslaughter, speedy trial limitations were governed by state's commencement of subsequent charge; delay caused by dismissal of murder indictment and reindictment on lesser charge could not be attributed to state since state's actions was necessitated by trial court's nonmeritorious granting of mistrial in second trial under murder indictment, making it at most invited error and invited delay chargeable to defense. Durbin v State (1986, Tex App El Paso) 716 SW2d 131. In murder prosecution in which (a) defendant was arrested and indicted and state declared ready in March, 1984, (b) there were written waivers of speedy trial in March and August 1984, (c) re-indictment was filed in December, 1984, identical to first except for presence of additional enhancement paragraph, and state then announced ready under second indictment, (d) there was series of agreed resets until May, 1985, and (e) state orally announced ready in May and June 1985, with trial beginning in June, 1985, trial court properly overruled defendant's motion to dismiss on speedy trial grounds since both indictments referred to same single offense, state's timely announcement of ready under first indictment transferred to second, as did speedy trial waivers and agreed continuances, excludable periods of time placed announcement under second indictment well within statutory period, and defendant failed to rebut state's prima facie showing that it had been ready since inception of case. Thibodeaux v State (1987, Tex App Houston (14th Dist)) 726 SW2d 601. First indictments charging defendant with first-degree murder and use of firearm in commission of felony as juvenile were without effect, and thus speedy trial period did not commence until preliminary hearing on second indictments, which charged him as adult, and defendant's jury trial, which was commenced within five months after second indictments, did not violate speedy trial rights, given that juvenile court lacked authority to certify charges made in original petitions, criminal warrants heard in general district court supplanted original charges, and indictments returned on certification supplanted earlier indictments. Code 1950, s 19.2-243. Willis v. Com., 556 S.E.2d 60 (Va. Ct. App. 2001). IV. Termination of prior accusatory instrument attributable to defense

s 12. Generally *34688 In the following cases in which the prior accusatory instruments were terminated on motions of the defendants, the courts held that the applicable speedy trial period commenced to run anew under the subsequent accusatory instruments. Likewise, in United States v Pereira (1978, ED NY) 463 F Supp 481, the court held that the time period under the Speedy Trial Act (18 U.S.C.A. s 3161) began to run from the time of the subsequent complaint where the dismissal of the original complaint was obtained by the defendant on nonspeedy trial grounds. In United States v Dennis (1980, CA8 Mo) 625 F2d 782, 6 Fed Rules Evid Serv 454, the court, affirming convictions for credit transaction violations, held that the time limitation under the Speedy Trial Act (18 U.S.C.A. s 3161(d)(1)) began to run anew with reindictment where the first indictment was dismissed at the defendant's request. After original indictment was dismissed pursuant to defendant's motion, Speedy Trial Act (STA) requirement that defendant be indicted within 30 days of arrest was refreshed and caused STA clock to begin running anew. 18 U.S.C.A.s 3161(d). U.S. v. Varela, 40 Fed. Appx. 490 (9th Cir. 2002). Affirming a conviction for robbery, the court, in State v Avriett (1975) 25 Ariz App 63, 540 P2d 1282, held that the refiling of charges following a dismissal without prejudice started the speedy trial period under the state rule to run anew. The original charges were dismissed on the defendant's motion with leave for the state to refile on the ground that 93 days had passed since the arraignment, 3 days in excess of the speedy trial period. The court concluded that a dismissal without prejudice to refile the charge would have little meaning if it were not implied that the speedy time period would begin to run anew on the refiling of the charges. The court also noted that the original charges were allowed to be refiled since there was no showing of prejudice to the defendant by the 3-day delay. Speedy-trial period commenced running on date charges, which had been dismissed on defense motion, were reinstated. Rules Crim. Proc., Rule 28.1(c). Peete v. State, 59 Ark. App. 186, 955 S.W.2d 708 (1997). And in Re Application of Rosenberg (1937) 23 Cal App 2d 265, 72 P2d 559, where petitioner was first indicted by the grand jury on June 25, 1937, to which indictment he interposed a demurrer which was sustained on July 6, 1937, and the superior court ordered the case resubmitted to the grand jury, which was done on August 24, 1937, and on August 25, petitioner moved for a dismissal of the proceedings on the ground that he had not been brought to trial within sixty days of the return of the indictment of June 25, 1937, contrary to the provisions of the speedy trial statute the court said that it would seem that the dismissal of the proceedings and the order of submission of the case to the same grand jury initiated an entirely new proceeding, and the indictment should not be dismissed, particularly when the filing of the new indictment was in response to a

demurrer interposed by petitioner. See also People v Conway (1969, 2d Dist) 271 Cal App 2d 15, 76 Cal Rptr 251 (disapproved on other grounds Owens v Superior Court of Los Angeles County, 28 Cal 3d 238, 168 Cal Rptr 466, 617 P2d 1098), where the court, affirming a burglary conviction, held that the defendant had been brought to trial within the speedy trial time period under a second information that had been filed after the first information was dismissed on the defendant's motion. Noting that the dismissal of the first information was not a bar to the filing of the second information, the court concluded that the defendant had been tried within the 60-day speedy trial period of the former statute where the delay between the filing of the second information and the defendant's trial, less excludable delays attributable to the defendant, did not exceed the speedy trial period. However, in State ex rel. Back v Starke Circuit Court (1979) 271 Ind 82, 390 NE2d 643, the court, discharging relators in a mandamus proceeding, held that the speedy trial period was to be calculated from the date of the relators' arrest under the original affidavit and information and that the relators had not waived their speedy trial rights by failing to take affirmative action to obtain a trial within the 1-year speedy trial period where that period had already expired when the subsequent charges were filed. The original charges against the relators were dismissed on their motion approximately 13 months after they were filed; 1 month later identical charges were filed. Approximately 1 year after the refiling of the charges, the relators filed a motion for discharge, which was denied. The state argued that the relators had a duty to raise their right to discharge at the earliest possible date and that their failure to file a motion for discharge earlier than they did constituted a waiver of that right. The court concluded that, taking into consideration the delays chargeable to the relators, which acted only to extend the time limitation by the amount of the delays, the 1-year speedy trial period ran out at the time the charges were refiled and that any action or inaction after expiration of the state's right to bring the relators to trial could not have contributed to the loss of that right. [FN14] *34689 Where indictment against defendant was dismissed and, due to late service of written notice of dismissal on state, state did not file notice of appeal until 93 days later, state would be charged with that period in determining whether 6-month speedy trial time limitation had elapsed before retrial of defendant. State was also charged with 71-day period between date defendant first failed to appear in court following reinstatement of indictment and date when he was returned on bench warrant. People v Holmes (1994, App Div, 2d Dept) 615 NYS2d 52, app withdrawn 84 NY2d 868. Speedy trial period that had commenced when defendant made first appearance on May 6 stopped on June 3, when charges were dismissed, and second speedy trial period commenced with his appearance on refiled charges on June 24 where, inter alia, dismissal of first charges was on defendant's motion and nothing nothing in record indicated state had sought dismissal to circumvent speedy

trial rule.

State v Tiedeman (1988, SD) 433 NW2d 237 (citing annotation).

In Mealy v Commonwealth (1952) 193 Va 216, 68 SE2d 507, which involved the question as to the applicability of a statute relating to the time within which an indictment must be tried and providing for the discharge of the accused "if there be three regular terms of the circuit or four of the corporation or Hustings court in which the case is pending after he has so held without a trial," unless the failure to try the accused was caused by enumerated exceptions, and in which the court pointed out that the admitted object of the statute was to give the accused a speedy trial as granted by the constitution, it was held that the fallacy of the contention of defendant, who sought to invoke the statute, was that he was here attempting to add the continuances under the original indictments, which were quashed on his motion, to the continuances under the new indictment upon which he was tried and convicted, which the court stated could not be done. The court said that on the timely motion of the defendant the original indictments became of no effect, and admittedly three terms of court had not passed between the return of the new indictment and the trial resulting in the conviction complained of; therefore the statute quoted did not here apply. A statute providing for the discharge of persons held under indictment for offenses who are not accorded trial within the reasonable time prescribed thereby, agreeably to the constitutional provision granting prompt trial in criminal cases, was construed in a case where it appeared that the defendant was charged with the same offense in two successive indictments, State v McIntosh (1918) 82 W Va 483, 96 SE 79, to mean that in the case of two such indictments, the accused was not entitled to count under that statute any term at which he procured a continuance of either indictment on his own motion, or otherwise prevented a trial thereof. s 13. Where prior accusatory instrument was terminated on speedy trial grounds The courts in the following cases, in which the prior accusatory instruments were terminated on the defendant's motions based on the failure to grant a speedy trial as provided by statute, held that the applicable speedy trial period commenced to run anew under the subsequent accusatory instruments that replaced the terminated instruments. Where defendant filed motion to dismiss first indictment on grounds that 70-day time limitation under Speedy Trial Act (18 U.S.C.A. s 3161 et seq.) had expired, trial court granted defendant's motion and dismissed first indictment, and grand jury reindicted defendant on same four counts, Speedy Trial Act's 70-day time limit for trial on second indictment did not begin to run at time defendant was reindicted on October 15, 1992, but rather it began to run when defendant made his first appearance before judicial officer at his arraignment on March 8, 1993, pursuant to 18 U.S.C.A. s 3161, which provides that if indictment is dismissed on motion of defendant and subsequent indictment is returned charging him with same offense, trial of defendant "shall

commence within seventy days from the filing date .-.-. of the .-.-. indictment, or from the date the defendant has appeared before a judicial officer of the court in which such indictment is pending, whichever date last occurs". United States v Colon (1993, DC Mass) 831 F Supp 912. Indictment was dismissed on defendant's motion, though trial court initially rejected motion and only later dismissed without prejudice when government asked it to reconsider, and subsequent return of new indictment triggered new 70-day time period; further, defendant's contention that, since dismissal had been based on violation of Speedy Trial Act, 70-day clock should not have been reset was without merit. United States v Magana-Olvera (1990, CA9 Wash) 917 F2d 401, 31 Fed Rules Evid Serv 703. *34690 For charges which may be brought after dismissal on motion of defendant under Speedy Trial Act, the Act's 30-day and 70-day periods begin to run anew from subsequent arrest or indictment, rather than from date of original arrest or indictment. 18 U.S.C.A. s 3161(d). U.S. v. Brown, 183 F.3d 1306 (11th Cir. 1999). Affirming a conviction for one count of sale of heroin, the court, in State v Gutierrez (1978, App) 121 Ariz 176, 589 P2d 50, held that the speedy trial period ran from the time of a subsequent indictment where the initial complaint was dismissed without prejudice on the defendant's motion to dismiss for lack of a speedy trial. The defendant was thereafter indicted on the same charges. The court stated that, following the dismissal of a criminal action with leave to refile, which dismissal was based on the denial of a speedy trial, the time limits of the speedy trial rule begin anew with the filing of the new information or the issuance of a summons following the grand jury indictment. In People v Godlewski (1943) 22 Cal 2d 677, 140 P2d 381 (for prior opinion see (Cal App) 132 P2d 540), where defendant contended that dismissal of the first complaint filed against him in justice's court and charging certain felonies barred prosecution against him under an information subsequently filed in the superior court charging him with the same offenses, and that if it did not, his constitutional right to a speedy trial was impaired because the time within which he was entitled to trial might not be indefinitely extended by successive new prosecutions for the same offense where prior proceedings had been dismissed because of failure to prosecute, the court denied this contention, pointing out that when the first charge, that is, the one filed in the justice's court, was dismissed because of the failure to bring him to trial within the statutory period, that charge was no longer pending against him, and there was no reason why another information might not be filed against him after such dismissal, the court in this connection stating that he had had the first charge dismissed and thus his right to a speedy trial protected, and that the filing of a new information for the same offense commenced a new period of time. Denying a petition for a writ of mandate to compel the dismissal of robbery charges for failure to afford the petitioners their constitutional right to a speedy trial, the court, in Crockett v Superior Court of Santa Clara County (1975) 14 Cal 3d 433, 121 Cal Rptr 457, 535 P2d 321, held that the speedy trial period began to run anew under a

subsequent information where the petitioners

failed to show that they were prejudiced by the delays that occurred prior to that information. The original information was dismissed on the petitioners' motion due to the state's failure to comply with the speedy trial statute requiring that a defendant who is incarcerated on other charges must be brought to trial within 90 days after delivery to the district attorney of a written notice demanding trial on the charges in the accusatory instrument. The state thereafter obtained a new information charging the same crimes. The court stated that if an accused cannot show that he has been prejudiced by the bringing of the new information and the state is not otherwise barred by limitations applicable to the filing of an information or presentment of an indictment, the rule is that the statutory time period within which to bring a defendant to trial starts anew. The court concluded in the case at bar that part of the delay was attributable to the petitioners' failure to move more expeditiously to dismiss the second information. The court also found that the petitioners' claim of prejudice was insufficient to compel dismissal of the charges and to permit the petitioners to escape prosecution. Though when felony and misdemeanor charges were consolidated, misdemeanor was governed by felony speedy trial period, State could not extend speedy trial limits by dropping misdemeanor charges after timely discharge motion was filed and then later refiling felony and misdemeanor charges arising from same episode in attempt to revitalize misdemeanors. Coleman v Eaton (1989, Fla App -5) 540 So 2d 915, 14 FLW 799. Reversing an order granting a defendant's motion for dismissal of an indictment on the ground that more than 6 months elapsed from the date of arrest to the trial date, the court, in State v Fair (1981) 63 Hawaii 314, 627 P2d 277, held that the 6-month speedy trial period began to run from the date of the refiling of the indictment and that the defendant had therefore not been denied his right to a speedy trial. The first indictment had been dismissed on the defendant's motion on the ground that more than 6 months had elapsed from the date of arrest to the trial date. The state subsequently sought and obtained a new indictment charging the defendant with the same offense. The court concluded that the case was controlled by the state statute that provided that the 6-month speedy trial period commenced from the date of refiling of the charges in cases where an initial charge is dismissed on the motion of the defendant. *34691 In State v McGowan (1942) 113 Mont 591, 131 P2d 262, in which it appeared that the first indictment of defendant for a felony was filed on June 5, 1941, and on December 26, 1941, a motion to dismiss was granted because defendant was not brought to trial within six months after the filing of the information, and a second information charging the same offense was filed before another judge in January, 1942. Defendant demurred on the ground that the second information was barred by a section of the Code providing that "if a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months after the finding of the indictment, or filing of the information," the prosecution must be dismissed, and it was also contended

that defendant's incarceration was in violation of an article of the state constitution providing for a speedy trial. It was held that the trial court erred in ordering the second information dismissed, in view of another section of the Code which provided that "an order for the dismissal of an action, as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but it is not a bar if the offense is a felony." The court approved the language in State v Le Flohic (1914) 127 Minn 505, 150 NW 171, where it was said: "Whether a trial is a speedy trial within the Constitution is a judicial question. The legislature cannot say and does not say that a trial is speedy if had within the time . . . mentioned in the section of the statute quoted. It does say, and it properly may say in regulating criminal procedure, that an indictment not tried as therein provided shall be dismissed." See also State v Ward (1980) 46 NC App 200, 264 SE2d 737, in which the court held that where a criminal charge is dismissed without prejudice on a defendant's motion under the speedy trial statute, the trial of the defendant on further prosecution by the state must begin within 120 days (subsequently amended to 90 days) from the date the order is entered dismissing the charge without prejudice. The court concluded that 120 days (90 days) was not an unreasonable length of time within which to reindict and begin the trial of a criminal charge after a dismissal without prejudice. s 14. Where prior accusatory instrument was terminated for lack of probable cause In the following cases in which the prior accusatory instruments were terminated on the defendant's motion for a redetermination of probable cause, the courts held that the applicable speedy trial period commenced to run anew under the subsequent accusatory instruments. In State ex rel. Berger v Superior Court of County of Maricopa (1975) 111 Ariz 524, 534 P2d 266, the court, in a special action brought by the state to determine the speedy trial issue in a pending prosecution, held that where a defendant's motion for a new finding of probable cause was granted and a new indictment or information was returned, the new indictment and new arraignment gave rise to a new time period under the speedy trial rule. The defendant was originally indicted on five counts of involuntary manslaughter, but, following an omnibus hearing, his motion for a new finding of probable cause was granted. The defendant was subsequently reindicted before a new grand jury and arraigned on the new indictment. The defendant's motion to dismiss the new indictment for lack of a speedy trial was scheduled to be granted on a date certain unless the state brought a special action to determine the matter prior to that time. Affirming a conviction for first-degree murder and related offenses, the court, in State v Soto (1977) 117 Ariz 345, 572 P2d 1183, citing State ex rel. Berger v Superior Court of County of Maricopa (1975) 111 Ariz 524, 534 P2d 266, supra, held that a subsequent indictment gave rise to a new speedy trial period where the prior indictment was quashed on a motion by a codefendant, joined in by the defendant, for a redetermination of probable cause.

Affirming convictions for robbery, burglary, and first-degree murder, the court, in State v Edwards (1979) 122 Ariz 206, 594 P2d 72, revd on other grounds 451 US 477, 68 L Ed 2d 378, 101 S Ct 1880, reh den 452 US 973, 69 L Ed 2d 984, 101 S Ct 3128, held that the defendant was not denied his statutory right to a speedy trial where the time expended under the first indictment was not included in the computation of time and the speedy trial limits began anew following his subsequent reindictment. The original indictment was dismissed following the defendant's motion for a redetermination of probable cause. The prosecution appealed the dismissal, but that appeal was unsuccessful and a new indictment was subsequently filed. Finding that the period while the appeal was pending was not to be included in the speedy trial computation and noting that the speedy trial limits began again after the reindictment, the court concluded that the speedy trial statute was not violated. *34692s 15. Where prior accusatory instrument was alleged to be defective or otherwise invalid [a] Held to run anew

The prior accusatory instruments having been dismissed on the defendants' motions based on the instruments being defective or otherwise invalid, the courts in the following cases held that the applicable speedy trial periods commenced to run anew under the subsequent accusatory instruments. Affirming a conviction for assault with intent to commit rape, the court, in Latson v State (1958, Sup) 51 Del 377, 146 A2d 597, held that the statutory speedy trial period began to run again with recommitment or reindictment after the previous indictments were dismissed on motions of the defendant. The first indictment was dismissed as defective and the second indictment was dismissed on the ground that the defendant had not been afforded a preliminary hearing. Noting that the long delay in bringing the defendant to trial was the direct result of his own actions, the court concluded that the speedy trial period ran from the final indictment where the record did not reveal any delay caused by the prosecution. Though defendant filed demand for trial and was not tried within term in which demand was filed or in next succeeding term, as required by statute, his motion for discharge and acquittal was properly denied since statute was applicable only if demand was entered at court term at which indictment was found, or at next regular term, defendant's sole demand had followed indictment that was quashed (in response to his demurrer), and he had not entered demand with respect to new indictment. Dean v State (1986) 180 Ga App 770, 350 SE2d 489. Defendant's statutory right to speedy trial, under which defendant has a right to be tried 270 days after he has been arraigned, commenced on date of arraignment on Madison County indictments not Rankin County indictments, where Rankin County indictments were dismissed and defendant was subsequently indicted in Madison County. West's A.M.C. s 99-17-1. Moore v. State, 822 So. 2d 1100 (Miss. Ct. App. 2002).

In State v Lyons (1978) 61 Ohio App 2d 228, 15 Ohio Ops 3d 367, 401 NE2d 452, motion overr, the court, reversing a judgment dismissing an indictment for complicity to commit murder, held that the speedy trial period ran from the time of reindictment. The original indictment was dismissed on the defendant's motion for failure to state all the elements of the crime and a new indictment was subsequently filed but was dismissed for want of a speedy trial. Holding that the dismissal of the original indictment on a defendant's motion for failure to state all the elements of the crime rendered such indictment a nullity, the court stated that the reindictment commenced a totally new period under the speedy trial provisions and that the time expended under the first indictment was not to be added to the time period under the new indictment. The court stated further that the subsequent indictment was for all purposes a new and original charge. Reversing an order granting a defendant's motion to dismiss a complaint for failure to comply with a speedy trial rule, the court, in Commonwealth v Finfrock (1978) 257 Pa Super 555, 391 A2d 621, held that the speedy trial period under the rule began to run from the filing of the second complaint. The case was originally set for trial 179 days after the filing of the original complaint. However, the trial was delayed when the defense moved to quash the indictment for failure to charge a criminal offense because a drug named in the complaint was not contained in the schedule of prohibited substances. The prosecution's motion to amend the indictment to identify the substance was denied and the indictment was quashed without prejudice. On the same day, a second complaint was filed charging the defendant with possession with intent to deliver and delivery of a controlled substance. The second complaint was thereafter dismissed on the ground that the 180-day speedy trial period began to run from the filing of the first complaint and that the period had been exceeded. Concluding that the speedy trial period did not begin to run until the second complaint was filed, the court determined that the second complaint was improperly dismissed where the prosecution still had over 3 months to bring the defendant to trial at the time the defendant's motion to dismiss the second complaint was filed. See Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447, s 21.

*34693 Denying a writ of prohibition sought to prevent the relator from being tried under a third indictment charging him with murder, the court, in State ex rel. Farley v Kramer (1969) 153 W Va 159, 169 SE2d 106, cert den 396 US 986, 24 L Ed 2d 451, 90 S Ct 482, held that the dismissal on motions of the relator of two prior indictments charging him with the same crime rendered those prior indictments nullities and that the three-term statutory speedy trial period was calculated from the third indictment. The prior indictments were dismissed on the ground that they were invalid. The third indictment was returned after three regular terms were commenced and ended since the regular term at which the initial indictment was returned. Noting that the prior indictments were held to be invalid at the instance of the relator, the court stated that there was no jurisdiction to try the relator on either indictment and any trial and conviction would have been a nullity. The court concluded that the dismissal of the prior

indictments on the motions of the relator provided a new starting point for the three-term statutory period from the initiation of the third indictment. [b] Other results

In the following cases in which the prior accusatory instruments were terminated on the defendants' motions due to an alleged defect or invalidity in the instruments, the courts held that the statutory speedy trial periods did not commence to run anew under the subsequent accusatory instruments that replaced the terminated ones. After trial court granted defendants' motion for dismissal of original information for vagueness, speedy trial time continued to run, since prosecution never moved to extend speedy trial period. Thus, discharge of all defendants was proper after speedy trial time had run. State v Frank (1991, Fla App -4) 573 So 2d 1070. If the state recharges a defendant with an included offense not mentioned in the original indictment, then any delay occasioned by the defendant on the original charge also applies to the new charge, for purposes of speedy trial. S.H.A. 725 ILCS 5/103-5(a). People v. Izquierdo-Flores, 266 Ill. Dec. 216, 773 N.E.2d 1286 (App. Ct. 2d Dist. 2002). The quashal of a prior defective affidavit on motion of the defendant was held, in State v McCarty (1962) 243 Ind 361, 185 NE2d 732, not to interrupt the running of the three-term speedy trial statute. Rejecting the prosecution's contention that the successful motion to quash "wiped out" the original charge for speedy trial purposes, the court stated that the statute recognized the fact that the original affidavit or indictment, although quashed, continued to have the force and effect necessary to hold the accused by recognizance until such time as a prosecution, based on the same factual circumstance, could be refiled. The court concluded that the recognizance by which the defendant was held for more than three terms of court continued, unabated, during the entire period. Although the quashal of the original affidavit was occasioned by the defendant's motion, the court stated that the delay would not be charged to the defendant since to do so would require the defendant to accept one of two prejudicial courses of action--to file the motions to quash and thereby toll the statute or to waive the defects by not filing such motions. See People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781, 24[b]. s

Reversing a judgment that ordered the discharge of a defendant on the ground that he was denied a statutory right to a speedy trial, the court, in Westlake v Cougill (1978) 56 Ohio St 2d 230, 10 Ohio Ops 3d 382, 383 NE2d 599, held that the time between the nolle prosequi of the first summons and the date of service of the second summons would not be counted in computing the period of time elapsed under the speedy trial statute since no charges were pending during that period. The defendant was originally served with a summons for violation of a traffic ordinance, but that summons was

dismissed on the defendant's motion on the mistaken ground that the ordinance was invalid. The defendant, thereafter served with a second summons charging him with the same violation, appeared for arraignment, at which time he executed a waiver of his speedy trial rights. Statutory law required that a person charged with such a misdemeanor be brought to trial within 45 days after arrest or service of the summons. The court concluded that, excluding the time between the nolle prosequi and the service of the second summons, only 44 days elapsed under the speedy trial statute at the time the defendant executed his waiver and that the defendant was therefore not denied his right to a speedy trial. *34694s 16. Where prior accusatory instrument charged felony and subsequent accusatory instrument charged misdemeanor In the following cases in which a felony accusatory instrument was terminated on motion of the defendant and was replaced with a misdemeanor accusatory instrument, the courts held that the applicable speedy trial period began to run anew under the subsequent misdemeanor accusatory instrument. Reversing an order that dismissed a complaint for failure to bring the defendant to trial within 30 days as required by a prior speedy trial statute, the court, in People v Nelson (1964, 2d Dist) 228 Cal App 2d 135, 39 Cal Rptr 238, held that the filing of a misdemeanor complaint that replaced a previously dismissed felony complaint initiated a new speedy trial period. The defendant was originally charged with felony manslaughter and felony drunk driving, but that complaint was dismissed on the defendant's motion. A second felony complaint was filed but was dismissed on motion of the district attorney. A misdemeanor complaint charging the defendant with misdemeanor manslaughter and misdemeanor drunk driving was thereafter filed, but was dismissed on the defendant's motion charging violation of the speedy trial statutes. Noting that the dismissal of the felony complaint was not a bar to filing another complaint, whether for a felony or for a misdemeanor, the court, adopting the opinion of the appellate department, held that the time for trial did not begin until the misdemeanor complaint was filed, and rejected the defendant's argument that the speedy trial period on the misdemeanor complaint began to run even before that prosecution was commenced. Affirming a conviction for unlawful delivery of barbiturates and stimulants, the court, in State v Roberts (1973, La) 278 So 2d 56, held that the defendant was not denied his right to a speedy trial where he was brought to trial within the 1-year speedy trial period after the filing of the second bill of information. The original bill of information charging the defendant with a felony was dismissed on a motion to quash more than a year after its filing. A week later the new bill of information charging the defendant with a misdemeanor was filed. The speedy trial article provided that the state had 1 year from the date of institution of prosecution in which to try an accused charged with a misdemeanor. Noting that the statute referred to a misdemeanor charge and that the crime charged in the original bill of information was a felony, the court concluded that the time period ran from the institution of the second bill of information.

s 17. Other particular circumstances The courts in the following cases, wherein the prior accusatory instruments were terminated at the request of the defendants based on circumstances other than those treated in s s 13-16, supra, held that the applicable speedy trial period was to be computed from the time of the subsequent accusatory instrument. In prosecution for felony conspiracy and felony violation of immigration laws, which felony charges were filed subsequent to defendant's withdrawal of guilty plea on misdemeanor conspiracy charge, period between filing of superseding indictment and arraignment thereon would not be included in speedy trial calculation, nor would period from filing of motion to dismiss until decision thereon be included, hence, 70-day speedy trial period calculated from withdrawal o guilty plea had not yet elapsed; moreover in interests of justice, conspiracy and substantive felony counts would be joined and period of time from rendering of decision on motion to dismiss until trial would be excludable as well from speedy trial calculations as to felony conspiracy count, with speedy trial calculation as to substantive felony count remaining unaffected by original indictment. United States v Ramos (1984, SD NY) 588 F Supp 1223, later proceeding (SD NY) 605 F Supp 277 and affd without op (CA2 NY) 779 F2d 37. See Ringstaff v. State, 451 So. 2d 375 (Ala. Crim. App. 1984), related reference, 861 F.2d 644 (11th Cir. 1988), reh'g granted, (Feb. 6, 1989) and on reh'g, 885 F.2d 1542 (11th Cir. 1989), s 11. In computing the speedy trial period on new charges, continuances obtained by the defendant in connection with the original charges are not attributed to him; such delays do not apply to the new charges because the new charges were not before the court when the defendant obtained the continuances. S.H.A. 725 ILCS 5/103-5(a). People v. Izquierdo-Flores, 266 Ill. Dec. 216, 773 N.E.2d 1286 (App. Ct. 2d Dist. 2002). *34695 Speedy trial act requiring trial within six months of incarceration would not require reversal of conviction where violated; defendant's sole remedy would have been release from custody after six months, which he waived by not requesting. Dismissal of indictment followed by reinstatement would be viewed as single prosecution for purpose of such statute, but all speedy trial rights would be deemed waived by defendant who, following demand for speedy trial, failed to object to state's failure to give him one. Fink v State (1984, Ind App) 469 NE2d 466, adhered to, clarified (Ind App) 471 NE2d 1161. Reversing a judgment dismissing an information on the ground that the defendant was denied his statutory and constitutional rights to a speedy trial, the court, in State v Fink (1975) 217 Kan 671, 538 P2d 1390, held that the defendant's statutory right to a speedy trial was not violated where the 180-day speedy trial period had not expired at the time the information was dismissed. The original complaint charging the defendant with aggravated arson was dismissed

on the defendant's motion for failure to afford him a timely preliminary hearing. The same charge was later refiled, a preliminary hearing was held, and an information filed by the state. The defendant was arraigned under that information, but later moved to dismiss it for violation of his speedy trial rights. Stating that the dismissal or nolle prosequi of a criminal charge entered prior to the arraignment and trial of an accused was not a bar to a subsequent prosecution for the same offense, the court concluded that the time elapsed under the original charge was not to be considered in determining the time elapsed between the subsequent information and the trial. The court found that 180 days had not elapsed between the earliest possible date of the defendant's arraignment under the information and the date when the information was dismissed. Five-year period between mistrial on defendant's murder charge and entry of nolle prosequi of indictment, which was followed more than twenty years later by reindictment and conviction, did not violate defendant's right to speedy trial, though length of such period was presumptively prejudicial to defendant; defendant never asserted his speedy trial rights, defendant acquiesced in delay caused by state agency's assistance to his defense without prosecution's knowledge, and defense was not prejudiced, as all material evidence from prior proceedings was preserved. U.S.C.A. Const. Amend. 6. De La Beckwith v. State, 707 So. 2d 547 (Miss. 1997), reh'g denied, (Mar. 26, 1998) and cert. denied, 119 S. Ct. 187 (U.S. 1998). Reversing an order dismissing an indictment on speedy trial grounds, the court, in Commonwealth v Bell (1976) 245 Pa Super 164, 369 A2d 345, affd 481 Pa 229, 392 A2d 691, held that the speedy trial statute commenced to run from the time of the entry of an order certifying the case to the criminal division for adult proceedings where the defendant was originally charged in a delinquency petition. Subsequent to the filing of the delinquency petition, the case was transferred at the defendant's request to the criminal court, the delinquency petition apparently being thereby abandoned. The defendant was subsequently indicted, but the indictment was dismissed on the ground that he had not been brought to trial within 180 days from the filing of the original delinquency petition. Noting that juvenile proceedings were excluded from the coverage of the state's criminal procedure rules, the court concluded that the statutory speedy trial period did not apply until the proceedings came within the powers of the criminal courts, which event took place with the entry of the order of transfer. And the rule that when a juvenile is transferred to the criminal division, the speedy trial rule begins to run from the date of the transfer rather than from the time the petition in juvenile delinquency is filed, was also recognized in Commonwealth v Gunter (1982) 299 Pa Super 432, 445 A2d 831; Commonwealth v Sadler (1982) 301 Pa Super 228, 447 A2d 625, habeas corpus proceeding (CA3 Pa) 748 F2d 820; and Commonwealth v Satchell (1982) 306 Pa Super 364, 452 A2d 768. See Durbin v State (1986, Tex App El Paso) 716 SW2d 131, s 11.

*34696 Juvenile defendant's speedy trial rights were not violated, despite his claim that, because circuit court lacked jurisdiction to try him on original indictments due to its failure to conduct review of transfer order before those indictments were returned, his waivers of his speedy trial rights before his release on bond, which occurred after review was conducted and he was indicted for second time, were as void as to original indictments; it was defendant's speedy trial rights that he waived in his motions for continuance of trial, not any right having to do with validity of indictments returned against him in circuit court. U.S.C.A. Const. Amend. 6; Code 1950, s 19.2-243. Jackson v. Com., 255 Va. 625, 499 S.E.2d 538 (1998), cert. denied, 1999 WL 8039 (U.S. 1999). V. Termination of prior accusatory instrument attributable to other than prosecution or defense s 18. Generally In the following cases wherein the prior accusatory instruments were terminated at the request of neither the prosecution nor the defense, the courts held that the applicable speedy trial periods commenced to run anew under the subsequent accusatory instruments. However, in Koch v State (1982, Alaska App) 653 P2d 664, the court, reversing a conviction for negligent homicide, held that the speedy trial period ran from the date of the original complaint charging the defendant with "following too close." The charges arose out of the death of a motorcyclist who was struck from behind by the defendant's automobile. The original complaint charging the defendant with the traffic infraction was terminated when the defendant paid the required fine. Although the district attorney's office originally concluded that the facts would not support charging the defendant with negligent homicide, subsequent events led to the submission of the case to a coroner's jury and a resultant complaint for negligent homicide. The court held that the charge of negligent homicide was a subsequent charge based on the same conduct as the original traffic infraction and that the 120-day speedy trial period for the negligent homicide charge started when the defendant was charged with the previous infraction. The court noted that the homicide complaint was not based on any new evidence and that the state failed to show any good cause for the delay in bringing the coroner's inquest, which might have tolled the speedy trial period. Affirming a conviction for kidnapping, the court, in State v Rose (1978) 121 Ariz 131, 589 P2d 5, held that the speedy trial limits began anew after the dismissal of a case without prejudice where there was no showing of bad faith on the part of the prosecution and no showing of prejudice to the accused. The original charges against the defendant were dismissed without prejudice and later refiled. The court stated that the record revealed no bad faith on the part of the prosecution nor prejudice to the defendant that would mandate measuring the speedy trial time from the defendant's initial arrest. The court added that a dismissal without prejudice to refile the charges would have little meaning if it

were not implied that the time limits of the speedy trial rule would begin anew on refiling. Denying a petition to restrain further proceedings in the prosecution of the defendant for an alleged sale of heroin, the court, in Bellizzi v Superior Court of Stanislaus County (1974) 12 Cal 3d 33, 115 Cal Rptr 52, 524 P2d 148, cert den 420 US 1003, 43 L Ed 2d 761, 95 S Ct 1445, held that the 60-day statutory period within which the defendant must be brought to trial began to run anew after the filing of the subsequent complaint. The court rejected the petitioner's contention that the state deprived him of his right to a speedy trial by its decision to refile the charge rather than to appeal the dismissal order relating to the original indictment. The petitioner claimed that the delay in bringing him to trial resulted in the unavailability of a defense witness who disappeared after he learned that the original indictment against the petitioner had been dismissed. While acknowledging that the prosecution's statutory right to refile cannot infringe on the petitioner's constitutional right to a speedy trial, the court concluded that to hold that the petitioner was denied a speedy trial as a result of prosecutorial delay in this case would require a finding that the prejudicial effect of the delay outweighed any justification for it. However, noting that the petitioner was in contact with his witness and yet failed to take steps to assure that the witness would remain available to testify, the court concluded that if the petitioner's negligence was a significant factor in causing the alleged prejudice, he should not be entitled to assert such prejudice as a ground for speedy trial relief. *34697 Criminal rule which requires the State to bring a defendant to trial within one year after the charge is filed or the defendant is arrested did not bar defendant's retrial for battery; the State originally brought defendant to trial within the one year limitations period, the trial judge took the matter under advisement for 169 days prior to the State seeking the appointment of a special judge to expedite the matter, and therefore the State was not responsible for the unreasonable delay in the resolution of defendant's first trial. Rules Crim. Proc., Rule 4(C). State v. Erlewein, 755 N.E.2d 700 (Ind. Ct. App. 2001). In People v Ferrara (1979) 102 Misc 2d 253, 423 NYS2d 370, the court, granting the defendant's motion to dismiss an accusatory instrument, held that the speedy trial period commenced to run from the filing of a prosecutor's information and not from the filing of a prior felony complaint where the applicable speedy trial statute provided that the speedy trial period be computed from the filing of the new accusatory instrument in cases in which a felony complaint was replaced with or converted to, inter alia, a prosecutor's information. The defendant was originally charged in a felony complaint with second-degree burglary and second-degree assault. Following presentment of the case to a grand jury, the prosecution was directed to file a prosecutor's information charging the defendant with third-degree assault and second-degree criminal trespass. Due to a "backlog" in the prosecutor's office, the prosecutor's information was filed approximately 2 months later. The applicable speedy trial statute stated that the speedy trial period was calculated from the filing of a misdemeanor accusatory instrument that replaced a prior felony accusatory

instrument and that the period of time from the misdemeanor accusatory instrument to trial must be 90 days, provided that the total period of time already elapsed from the filing of the felony complaint to the filing of the new accusatory instrument did not exceed 6 months. If the period of time did exceed 6 months, the period applicable to the charges in the felony complaint remained

applicable and continued as if the new misdemeanor accusatory instrument had not been filed. Affirming a conviction for conspiracy to commit burglary, the court, in Commonwealth v Braithwaite (1978) 253 Pa Super 447, 385 A2d 423, held that the statutory speedy trial period ran from the filing date of the fourth and final complaint filed against the defendant where the initial complaint was properly dismissed by a magistrate and the record failed to show that either the defendant or his attorney objected to that dismissal. Two additional complaints charging the same crime were filed against the defendant following the dismissal of the original complaint, but these complaints were subsequently withdrawn by the police officer who signed the affidavits. The court noted that the prompt trial period would attach from the date of the subsequent complaint only if the initial complaint were properly dismissed by the magistrate and there was no evidence of an improper prosecutorial design to circumvent the mandate of the speedy trial rule. In the case at bar, the court concluded that, since neither the defendant nor his attorney objected to the dismissal, it must be assumed that the magistrate did not abuse his discretion in dismissing the initial complaint. s 19. Where prior accusatory instrument was alleged to be defective or otherwise invalid In the following cases in which defective or otherwise invalid accusatory instruments were terminated but such termination was not attributable to the prosecution or the defense, the courts held that the applicable speedy trial periods began to run anew under the subsequent accusatory instruments. Denying a petition to dismiss the first count of an indictment that replaced a previous indictment that contained an erroneous date of the crime charged, the court, in Rowse v District Court of County of Alamosa (1972) 180 Colo 44, 502 P2d 422, held that the 1-year statutory speedy trial period as applied to the first count of the subsequent indictment ran from the time of the filing of that indictment where the first count of the original indictment specified as the date of the crime a date after the indictment itself was issued. On discovering that the first count of the two-count indictment contained the incorrect date, the grand jury reindicted the defendant, the first count of the new indictment specifying the correct date and the second count repeating the second count of the original indictment. The trial court subsequently dismissed the original indictment on its own motion. On appeal, the court held that the accused did not become legally charged or subject to the jurisdiction of the court as to the first count of the subsequent indictment until he was reindicted and charged in the subsequent action. The court noted that a crime cannot be charged in the future and an indictment or information purporting to do so charges nothing and is without efficacy. However, the court held that it was error to deny the motion to dismiss the second count, which was identical to the second count of the first indictment, where the defendant was charged with the offense in that count for more than 1 year without being brought

to trial. The court impliedly held that the statutory speedy trial period ran continuously from the initial indictment on the second count and was not interrupted by the dismissal and refiling of the identical charge. *34698 Affirming a conviction for burglary, the court, in State v Bolin (1983, Mo) 643 SW2d 806, held that the statutory speedy trial period ran from the time of a subsequent indictment where the original indictment was invalid due to an irregularity in the indictment procedure. The state originally filed a complaint, then obtained an indictment, filed a second complaint, secured a second indictment, and ultimately tried the defendant on an information filed in lieu of the second indictment. After the filing of the first indictment, a preliminary writ of prohibition staying the proceedings against the defendant and 36 other defendants indicted by the same grand jury was issued on the ground that the indictments were improperly returned. Rejecting the defendant's claim of a denial of his statutory right to a speedy trial, the court concluded that the entire proceeding involving the first indictment was a nullity and did not result in the running of the speedy trial statute. The court likewise held that the speedy trial statute did not apply to outstanding complaints, but only to informations or indictments. The court concluded that the defendant was not denied his right to a speedy trial where the trial was begun only 9 days after the second indictment was returned. Affirming a conviction for fornication and bastardy, the court, in Commonwealth v Mumich (1976) 239 Pa Super 209, 361 A2d 359, held that the defendant had not been denied his right to a speedy trial where the trial had been held within 270 days from the filing of the second complaint charging him with the crimes. The first complaint was dismissed by a magistrate on the ground that the signature of the prosecutrix did not appear on the defendant's copy. Within a month of the dismissal, a second complaint was filed by the prosecutrix. The defendant's motion to dismiss the second complaint on the ground that he had not been tried within 270 days of the filing of the first complaint was denied and trial was held within the 270-day limit from the date of the second complaint. Without determining whether the defect in the first complaint was substantial enough to warrant dismissal, the court concluded that the failure of the defendant or his attorney to object to the dismissal of the first complaint constituted an acquiescence in this procedure thereby depriving the defendant of the argument on appeal that the dismissal was improper. In addition, the court stated that the record did not reflect that the dismissal was an attempt by the district attorney to evade the speedy trial rule. Grand jury's action in returning first indictment as "not a true bill" in November, following certification of charge to it in September, operated to discharge defendant on charge in question, and, since he was brought to trial in April, within two months of second indictment in February, there was compliance with five-month statutory speedy trial period, notwithstanding fact that trial was 6 1/2 months after finding of probable cause on first charge. Presley v Commonwealth (1986) 2 Va App 348, 344 SE2d 195.

However, in State v Matlock (1980) 27 Wash App 152, 616 P2d 684, the court held that the speedy trial period was tolled between the dismissal of the original charges and the defendant's arraignment on refiled charges. The original information charging the defendant with manufacturing and possessing a controlled substance was dismissed by the court without prejudice on the ground that

the information was not verified. The defendant was subsequently arraigned under a verified information charging the identical crimes. While noting that the prior speedy trial rule excluded the time between the dismissal and the refiling of the same charges, the court concluded that the amended rule, which excluded the time between dismissal and arraignment on the refiled charges, was applicable in this case. Therefore, the court held that the time expended under the original information and the time expended under the subsequent information not having exceeded the speedy trial period, the defendant received a timely trial. However, the conviction was reversed on the ground that the affidavit in support of the search warrant was insufficient and the evidence seized should have been suppressed. s 20. Where prosecution witness was alleged to be unavailable The courts in the following cases, wherein the prior accusatory instruments were terminated when prosecution witnesses became unavailable, held that the applicable speedy trial period began anew under the subsequent accusatory instruments. Affirming a conviction for robbery, the court, in State v Taylor (1976) 27 Ariz App 330, 554 P2d 926, held that the defendant was not denied his right to a speedy trial under state rule where the time for bringing the defendant to trial began from the filing of the second complaint. The first complaint against the defendant was dismissed by a justice of the peace when the victim could not be located and the prosecution could not proceed without him. The charges were subsequently filed again and the defendant was tried and convicted under a second complaint. While noting that the state rule provides that the prosecution is not entitled to a dismissal where the purpose of the dismissal is to avoid the provisions of the speedy trial rule, the court concluded on these facts that the filing of the second complaint triggered the time of the speedy trial rule to run anew and that there was no violation of the rule. *34699 Likewise, in People v Toney (1978) 58 Ill App 3d 364, 15 Ill Dec 912, 374 NE2d 695, the court, reversing an order discharging the defendant on speedy trial grounds, held that the statutory speedy trial period commenced to run anew on the defendant's reindictment where the original charges were dismissed by the court on a finding of no probable cause. The original charges of murder and aggravated battery were dismissed at the conclusion of a preliminary hearing when the state was unable, despite diligent efforts to locate eyewitnesses to the crimes, to present testimony from those eyewitnesses. Distinguishing the situation where a charge is stricken with leave to reinstate, in which case the same charge subsequently may be reinstated, the court pointed out that after a discharge for want of probable cause, the proceedings may begin again only after the prosecution secures additional evidence and files new charges against the defendant. The court added that a dismissal for lack of probable cause is a judicial determination in favor of the defendant rather than a voluntary act on the part of the prosecution and that the prosecution has little opportunity to manipulate the proceedings or purposely to

evade the operation of the speedy trial term. Affirming a conviction for murder, the court, in People v Garcia (1978) 65 Ill App 3d 472, 22 Ill Dec 51, 382 NE2d 371, held that the statutory speedy trial period began to run anew on the defendant's arrest pursuant to the subsequent indictment where the original charges were dismissed and the defendant was discharged on a finding of no probable cause and where there was no proof that the prosecution sought to evade the speedy trial rule. The dismissal on no probable cause resulted from the inability of the prosecution to present testimony at the preliminary hearing from the only eyewitness to the crime. The eyewitness had left the state after the murder out of fear of the defendant's friends if he cooperated with the authorities. Once the eyewitness returned, the prosecution was then able to obtain the subsequent indictment. The court stated that absent a showing that the prosecution orchestrated the finding of no probable cause as an evasionary tactic, there was no reason to ignore the speedy trial statute's requirement that the period ran only when the charge was pending against the accused. The court pointed out that in the case at bar the subsequent indictment was the result of eyewitness testimony that was unavailable to the state at the preliminary hearing. Reversing an order dismissing an indictment on the ground of speedy trial violations, the court, in State v Koberlein (1983) 309 NC 601, 308 SE2d 442, held that the running of the speedy trial statute commenced with the defendant's arrest under the subsequent indictment where the initial charges were dismissed due to the failure of the prosecuting witness to appear at the original probable cause hearing. Recognizing the rule under the speedy trial statute that when a charge is dismissed on a finding of no probable cause, the computation of time for the purpose of applying the Speedy Trial Act commences with the last of the listed items ("arrested, served with criminal process, waived an indictment, or was indicted"), the court concluded that there was no practical distinction between a dismissal based on the state's failure to process with a probable cause hearing due to the unavailability of a prosecuting witness and a dismissal based on a finding of no probable cause. The court stated that under the facts of the case the time within which the state was required to bring the defendant to trial ran from his arrest under the new charges and not the original charges. However, in Commonwealth v Leatherbury (1982) 499 Pa 450, 453 A2d 957, on remand 322 Pa Super 222, 469 A2d 263, the court, vacating an order discharging a defendant for failure to provide him with a speedy trial, held that the 180-day speedy trial period was tolled between the time of the dismissal of the first complaint and the filing of the second complaint where the dismissal was not obtained at the instigation of the prosecution and there was no attempt to evade the speedy trial limits. Pursuant to a local court rule, the initial complaint was dismissed when the complaining witness failed for the third time to appear at a preliminary hearing. Approximately 4 months later a second complaint was filed charging the defendant with the same crimes. The court stated that the speedy trial rule was tolled between the dismissal of a prior complaint and the filing of a subsequent complaint except where the state attempted to evade the requirements of the speedy trial rule

through the use of the nolle prosequi procedure. *34700 See also Commonwealth v Lowe (1978) 255 Pa Super 78, 386 A2d 144, where an opinion in support of affirmance of a conviction by an equally divided court held that the speedy trial period ran from the filing of the second complaint where the

first complaint was properly dismissed and the record reflected that the dismissal was due to the inability to produce witnesses for the state and that there was no attempt by the prosecution to avoid the mandate of the speedy trial rule. Affirming a conviction for perjury, the court, in Commonwealth v Weitkamp (1978) 255 Pa Super 305, 386 A2d 1014, held that the defendant was not denied his right to a speedy trial where he had been tried within the statutory period after the filing of the second complaint. The first complaint charging the defendant with perjury was dismissed at a preliminary hearing when three of the state's witnesses asserted their Fifth Amendment privilege and refused to answer questions regarding their knowledge of an involvement in the criminal acts. Approximately 9 months later a new complaint charging perjury on the same facts was lodged against the defendant. Rejecting the defendant's contention that the 275-day statutory period should be computed from the filing of the initial complaint, the court concluded that the statutory period ran from the filing of the second complaint where there was no objection by the defense to the dismissal of the first complaint and, further, the record did not reflect any intent by the state to deprive the defendant of his right to a speedy trial or otherwise to secure advantage or prejudice the defendant's defense by trying him at a later time. The court determined that the first complaint was properly dismissed solely because the witnesses for the state had declined to testify. s 21. Where prior accusatory instrument was terminated for lack of probable cause or failure to state prima facie case In the following cases wherein the prior accusatory instruments were terminated by the court based on a lack of probable cause or a failure to establish a prima facie case, the courts held that the applicable speedy trial period commenced to run anew from the time of the subsequent accusatory instrument. Reversing a judgment granting a petition for discharge on speedy trial grounds, the court, in People v Gimza (1977) 56 Ill App 3d 477, 14 Ill Dec 82, 371 NE2d 1135, held that the 160-day speedy trial period for defendants on bail began to run anew on an indictment for murder that was returned after the original manslaughter charge was dismissed by the court at a preliminary hearing for lack of probable cause. The indictment was returned after the grand jury heard evidence based on the same events, including a witness who had not appeared at the preliminary hearing. Recognizing that the statutory time period continues to run if the state nolle prosses a case or has the charge stricken with leave to reinstate, the court concluded that a discharge for want of probable cause with a subsequent indictment was distinguishable from those situations in that the probable cause discharge was not an act within the state's control. The court pointed out that the indictment was based on additional evidence and that it charged the defendant with a more serious crime than the original charge. And the rule that the speedy trial period begins to run anew under the subsequent accusatory instrument where the prior

accusatory instrument was dismissed by the court for lack of probable cause was also recognized in People v Toney (1978) 58 Ill App 3d 364, 15 Ill Dec 912, 374 NE2d 695; and People v Garcia (1978) 65 Ill App 3d 472, 22 Ill Dec 51, 382 NE2d 371. Following dismissal of indictment containing felony charge against one defendant and misdemeanor charges against other defendant (on grounds that evidence was insufficient with respect to felony and that prosecution had inadequately instructed grand jury with respect to misdemeanors) and subsequent filing of indictment containing only misdemeanor charges, six-month readiness period applicable to filing of felony charges continued to govern case rather than 90-day period applicable to misdemeanor charges, and six-month period ran from date of original indictment. People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736. Where first indictment was dismissed for lack of probable cause after prosecution complied with statutory speedy trial requirement, defendant's speedy trial right was not violated by filing of amended indictment, since prosecution was ready for trial within statutory period. People v Skinner (1995, NY App Div 3rd Dept) 621 NYS2d 733. *34701 Affirming a conviction for felonious possession of stolen property, the court, in State v Boltinhouse (1980) 49 NC App 665, 272 SE2d 148, held that the speedy trial period commenced with the last of the statute's listed items ("arrested, served with criminal process, waived an indictment, or was indicted") relating to the new charge rather than the original charge where the original charge was dismissed on a finding of no probable cause. The defendant was originally arrested pursuant to a warrant charging him with felonious possession of stolen property, but a finding of no probable cause was subsequently entered on that charge. He was thereafter indicted for felonious possession of the same property. The speedy trial statute provided that where a charge is dismissed and the defendant is later charged with the same offense or an offense based on the same criminal act, the trial must commence within 120 days from the date of the last of the listed events relating to the original charge. One of the two exceptions was a dismissal based on a finding of no probable cause and the court concluded that the speedy trial period would commence to run under a new charge where the original charge was dismissed on a finding of no probable cause. The court determined in this case that the speedy trial period began to run from the date of the defendant's indictment on the new charge rather than from the date of his arrest on the original charge. The rule that the speedy trial period begins to run anew under the subsequent accusatory instrument where the prior accusatory instrument was dismissed by the court for failure of the prosecution to establish a prima facie case was also upheld in Commonwealth v Cartagena (1978) 482 Pa 6, 393 A2d 350; Commonwealth v Horner (1982) 497 Pa 565, 442 A2d 682; and Commonwealth v Poindexter (1982) 301 Pa Super 454, 447 A2d 1387. Reversing an order dismissing murder and related charges on the ground that the defendant was denied his right to a speedy trial, the court, in Commonwealth v Genovese (1981) 493 Pa 65, 425 A2d 367, held that the

180-day speedy trial period commenced to run from the filing of the second complaint. The original complaint charged the defendant with murder, voluntary manslaughter, and

other offenses arising out of the death of his girlfriend's infant daughter. Approximately 5 months later the complaint was dismissed for lack of a prima facie case. About 3 weeks later a second complaint, containing charges identical to those previously dismissed, was filed and the defendant was rearrested. The defendant's subsequent motion to dismiss all charges with prejudice on the ground that more than 180 days had passed since the filing of the original complaint was granted. The court stated that 50 long as there had been no misconduct on the part of the state in an effort to evade the fundamental speedy trial rights of a defendant, the spirit and language of the speedy trial rule mandated that the 180day time period be calculated from the date of the filing of the second complaint, the first complaint having become a nullity for all purposes once it was dismissed. In prosecution for driving under the influence, in which first complaint was properly dismissed due state's failure to present prima facie case in that to charging officer failed to appear at preliminary hearing, officer's actions in failing to appear and in filing subsequent complaint over two months later did not constitute attempt to circumvent speedy-trial rule, hence lower court properly computed 180 day period under rule from date of filing of second complaint. Commonwealth v Knox (1984) 330 Pa Super 136, 479 A2d 1. In prosecution in which three complaints were filed against defendant, statutory speedy trial period began to run from filing date of third complaint where first complaint was "properly dismissed," within meaning of speedy trial rule for failure to make out prima facie case, where second complaint was dismissed upon motion by defendant for late filing of complaint, and where there was no indication of Commonwealth attempt to circumvent rule. Commonwealth v Gehman (1989) 381 Pa Super 244, 553 A2d 447. In considering speedy trial motion of defendant who was indicted for assault and battery in October 1979, was arrested for murder of same victim several weeks later, had murder charge dismissed at preliminary hearing in January 1980 due to lack of probable cause, was arrested again for murder in September 1984 and subsequently indicted for it, and was scheduled for trial in June of 1985, the only time period to be included were three months between initial arrest and dismissal of charges and nine months between second arrest and defendant's motion to quash; time during which charges were dismissed and defendant was free of all restrictions on his liberty were to be excluded. Hunter v Patrick Constr. Co. (1986) 289 SC 46, 344 SE2d 613. *34702s 22. Where prior accusatory instrument was terminated for failure to prosecute The courts in the following cases, wherein the prior accusatory instrument was terminated by the court due to lack of prosecution, held that the applicable speedy trial period continued to run and was not interrupted by the termination. Although a different result was reached in earlier cases, [FN15] the court in a

later New York case held that the speedy trial period continued to run from the filing of the initial accusatory instrument where that instrument was dismissed for failure of the state to prosecute. Thus, reinstating the trial judge's orders granting motions by the defendants to dismiss indictments on the grounds of speedy trial violations, the court, in People v Osgood (1980) 52 NY2d 37, 436 NYS2d 213, 417 NE2d 507, on remand (2d Dept) 80 App Div 2d 620, 436 NYS2d 61 and on remand (2d Dept) 80 App Div 2d 623, 436 NYS2d 65, held that the speedy trial period was to be computed from the time of the filing of the original felony complaint rather than from the subsequent indictment for the same charges where the original complaint was dismissed on the ground of the inexcusable failure of the state to prosecute. Each defendant in these cases, arraigned on a felony complaint that was subsequently dismissed for failure to prosecute, was later indicted for the same offense as that charged in the complaint. More than 6 months having elapsed since the filing of the complaint, each defendant moved to dismiss the subsequent indictment for failure to bring him to trial within the speedy trial period. Rejecting the state's proposition that the indictments were not "directly derived" from the complaints, the court stated that the cases could be directly traced to the complaints that originated the prosecutions on the same felonies charged in the indictments. [FN16] In State v Justice (1976) 49 Ohio App 2d 46, 3 Ohio Ops 3d 109, 358 NE2d 1382, motion overr, the court, reversing a conviction for possession of a hallucinogen, held that the time for bringing the defendant to trial ran from the time of arrest under the original complaint where that complaint was dismissed for want of prosecution and another complaint containing the identical charge was subsequently filed. The court concluded that the defendant was denied his right to a speedy trial where he was tried more than 90 days after his arrest on the original complaint. And see Commonwealth v Powell (1978) 257 Pa Super 522, 390 A2d 1360, in which an equally divided court affirmed a judgment and an opinion in support of affirmance, concurred in by three of the six judges, and held that the speedy trial period began to run from the date of the filing of the second complaint where the first complaint had been dismissed for lack of prosecution. However, in State v Wieman (1978) 19 Wash App 641, 577 P2d 154, the court, affirming a conviction for passing a forged prescription, held that the period between the dismissal of the original charge and the refiling of the same charge was excluded by the speedy trial rule in computing the period elapsed for speedy trial purposes. The court dismissed the original charge due to lack of prosecution by the state and the prosecution subsequently filed an information based on the same alleged offense. The court stated that there was no violation of the 90-day speedy trial rule unless the time between the dismissal and the refiling were included in the computation of the statutory period. s 23. Where prior accusatory instrument was brought in different court In the following cases in which the prior accusatory instruments were terminated other than by the prosecution or the defense and

subsequent accusatory instruments were brought in different courts, the courts held that the applicable speedy trial period was

computed from the appropriate time under the subsequent accusatory instruments. In prosecution for drug offenses and conspiracy, delay between original California indictment and eventual trial in Arizona did not violate Speedy Trial Act, even if reindictment in Arizona after change of venue only tolled time period rather than restarting period, where excluding days between motion for change of venue and first appearance in Arizona left 64 non-excludable days; dismissal of original indictment was not clearly attributable to defense or prosecution since motion for change of venue did not require reindictment, and second indictment was not to clarify or remedy defects in first charge. United States v Duque (1995, CA9 Ariz) 62 F3d 1146, 95 CDOS 6224, 95 Daily Journal DAR 10608. *34703 The speedy trial statute was held, in Pearson v State (1982) 53 Md App 217, 452 A2d 1252, to apply only to a subsequent indictment in the circuit court and not to a previously dismissed warrant in the district court. The original warrant was dismissed when the prosecution elected to take the case before a grand jury, which subsequently returned an indictment against the defendant. Stating that the speedy trial rule applied only to charges brought in the circuit court, the court concluded that the speedy trial period ran from the time the defendant's counsel entered his appearance in the circuit court and that the defendant was therefore brought to trial within the 180-day requirement where the time between counsel's appearance and the trial was only 167 days. Affirming a conviction for delivering a bank check with intent to defraud, the court, in State v Costello (1977) 199 Neb 43, 256 NW2d 97, held that the 6-month statutory speedy trial period commenced from the filing of the information in the district court rather than from the filing of a prior complaint in the county court. Subsequent to the filing of the original complaint, the defendant was arrested outside the jurisdiction and apparently arraigned under the complaint. Thereafter an information similar to the complaint was filed in the district court. Noting that the speedy trial statute provided that the 6-month period commenced to run on the date the indictment was returned or the information filed, the court concluded that the defendant's speedy trial rights were not violated where he was brought to trial less then 6 months after the filing of the information. s 24. Other particular circumstances [a] Held to run anew

In the following cases, wherein the prior accusatory instruments were terminated by neither the prosecution nor the defense and factors existed other than those treated in s s 19-23, supra, the courts held that the applicable speedy trial period began to run anew from the time of the subsequent accusatory instrument. Superseding indictment returned by grand jury, which added to original indictment of five counts based on same course of conduct, restarted 30-day period within which government could not bring defendants to

trial under Speedy Trial Act, where addition of racketeering count might have significantly altered defense's tactics and strategies at trial and may have necessitated additional legal research for which defendants deserved full period of preparation allowed. United States v Feldman (1985, CA7 Ill) 761 F2d 380, 18 Fed Rules Evid Serv 1, 84 ALR Fed 649 (disapproved United States v RojasContreras, 474 US 231, 88 L Ed 2d 537, 106 S Ct 555, on remand, without op (CA9 Cal) 786 F2d 1176) as stated in United States v Watkins (CA11 Fla) 811 F2d 1408, cert den (US) 96 L Ed 2d 381, 107 S Ct 2490 and later app (CA7 Ill) 825 F2d 124. Effect of court's sua sponte dismissal of information, following its rejection of plea agreement, was to restart rather than toll speedy trial clock. United States v Page (1988, CA8 Minn) 854 F2d 293. Court of Appeals' remand of orders of dismissal, which returned jurisdiction over defendants' cases to district court and caused reinstatement of driving while intoxicated (DWI) charges, restarted speedy trial calculation at "Day 1." Rules Crim. Proc., Rule 45. Garcia v. State, 947 P.2d 1363 (Alaska Ct. App. 1997). Affirming a conviction for attempted burglary in the first degree, the court, in State v McDonald (1977) 117 Ariz 159, 571 P2d 656, held that the time period under the speedy trial rule was properly calculated from the second complaint charging the defendant with attempted burglary where the initial complaint was dismissed by the court without prejudice for failure to hold another preliminary hearing to determine probable cause. The original complaint was remanded to the justice court for a redetermination of probable cause, but that hearing has never conducted and the dismissal was entered. A new complaint charging the same crime was thereafter issued. The court stated that when a motion for a new finding of probable cause is granted and a new indictment or information is thereafter filed, new time periods under the speedy trial rule result. Under statute requiring that any retrial of charge reversed on appeal following conviction occur within six months of reversal, prosecution's announcement of readiness to conduct retrial was insufficient to toll six-month period where they did not in fact take steps to commence trial despite availability of defendant in custody on other charges. Reindictment would thus be dismissed. People v Greenwaldt (1984, 3d Dept) 103 App Div 2d 933, 479 NYS2d 781. *34704 In State v Sauers (1977) 52 Ohio App 2d 113, 6 Ohio Ops 3d 87, 368 NE2d 334, the court held that the speedy trial period commenced from the service of the summons on a misdemeanor indictment charging the defendant with criminal trespass where the prior felony charge was dismissed by the grand jury that returned the misdemeanor indictment. The court held that the misdemeanor charge brought into action the statutory time limitations relating to misdemeanors and that the time limitations of the statute relating to felonies were no longer applicable once the felony charge was dismissed. [FN17]

Defendant's speedy trial rights were not violated where prosecution timely announced trial readiness on initial indictment, where subsequent indictment did not change original charges except to allege prior convictions, and where principal reason for delay was not subsequent indictment, but rather need for competency hearing. Armstead v State (1984, Tex App El Paso) 677 SW2d 266, review ref, en banc (Tex Crim) 692 SW2d 99. In Dulin v Commonwealth (1895) 91 Va 718, 20 SE 821, it appeared that in the November 1893 term of county court defendant was indicted for murder, and at the same term of that court, upon his own demand, remanded to the circuit court for trial and that the county court never had any further jurisdiction over that indictment, and there was, therefore, but one term of the county court at which defendant could have been tried upon the first indictment, namely, the November term, 1893. It was contended by defendant that if a statutory amendment of February 12, 1894, deprived the circuit court of jurisdiction to try the indictment pending in that court, then the amendment which deprived that court of such jurisdiction ex proprio vigore forever discharged the accused from further prosecution for said offense, or else remanded said indictment to the county court for trial on the day that the said jurisdiction was taken from the circuit court, and that since there had been four terms of the county court from the time said jurisdiction was taken away from the circuit court, and no trial of said indictment, he was entitled to be forever discharged from prosecution for said offense. In answer to this contention, the court pointed out that the taking away of the jurisdiction of the circuit court did not operate to transfer the indictment from that court to the county court, inasmuch as to remand such a case from the circuit court to the county court would require an act of the legislature. So the indictment pending in the circuit court was therefore never remanded to the county court by operation of law or otherwise, and the time between the amendment, and the time the accused was again indicted, in June, 1894, could not be considered in determining whether there was such delay in the county court in the trial of the accused as entitled him to be forever discharged from further prosecution for the offense. [b] Other results

The courts in the following cases, wherein the prior accusatory instruments were dismissed other than by the prosecution or the defense and factors were present other than those treated in s s 19-23, supra, held that the applicable speedy trial period was calculated other than by the subsequent accusatory instrument. Affirming a conviction for assault and battery, the court, in People v O'Malley (1982) 108 Ill App 3d 823, 64 Ill Dec 333, 439 NE2d 998, held that the running of the speedy trial statute was tolled between the dismissal of the initial indictment and the filing of the subsequent indictment charging the same crimes. The original indictment was dismissed by the circuit court on the ground of prosecutorial misconduct before the grand jury. The state filed a notice of appeal from the dismissal, but the appeal

was never perfected and a new indictment was subsequently returned charging the defendant with the same crimes as those in the original indictment. Noting that there were no charges pending against the defendant after the dismissal of the first indictment and that the defendant was not then in custody or under any restraint, the court concluded that the time between the dismissal and the reindictment was not to be included in the speedy trial period since that period only runs when charges are pending against a defendant. The court added that it was apparent that the state did not deliberately procure the dismissal of the first indictment to evade the speedy trial requirement. Capital murder defendant's statutory right to a speedy trial was not violated, even though he was reindicted for the same crime, as approximately 46 days passed between arraignment on the second indictment and trial. West's A.M.C. ss 97-3-19(2)(b), 99-17-1. Mitchell v. State, 792 So. 2d 192 (Miss. 2001). *34705 See People v Day (1988) 139 Misc 2d 222, 526 NYS2d 736, s 21.

Reversing a conviction for attempted burglary and discharging the defendant, the court, in Commonwealth v Garbett (1978) 256 Pa Super 488, 390 A2d 208 (ovrld on other grounds Commonwealth v Ardolino 304 Pa Super 268, 450 A2d 674), held that the defendant had been denied his right to a speedy trial where his trial had been scheduled more than 180 days after the filing of the initial criminal complaint. The first complaint was dismissed on the ground that the preliminary hearing had been improperly scheduled less than 3 days after the preliminary arraignment. Approximately 3 weeks later a second criminal complaint was filed against the defendant. The case was set for trial on a date more than 180 days from the filing of the first complaint and the defendant thereafter moved to dismiss on the ground of speedy trial violations, but such motion was denied. The court held that the state could not extend the period for trial by filing the second complaint and implied that the prosecution should have sought a continuance of the preliminary hearing rather than filing a second complaint. Without determining whether the failure to seek a continuance was an oversight or a reasoned maneuver to extend the speedy trial period, the court concluded that, regardless of the prosecution's motive, the result was that the defendant had been subjected to the harm of an extended period within which he could be prosecuted. Research References Total Client-Service Library References The following references may be of related or collateral interest to a user of this annotation. Annotations

Encyclopedias and Texts 21A Am Jurisprudence 2d, Criminal Law ss 660-662, 852-855. 41 Am Jurisprudence 2d, Indictments and Informations s 13. 9 Federal Procedure, L Ed, Criminal Procedure s 22:741. Practice Aids 11 Am Jur Pl & Pr Forms (Rev), Federal Criminal Procedure Form 85. 17 Am Jur Pl & Pr Forms (Rev), Mandamus Form 144. 7 Federal Procedural Forms, L Ed, Criminal Procedure s 20:702. 7 Am Jur Proof of Facts 2d 477, Prejudice Resulting from Unreasonable Delay in Trial ss 1-25. 13 Am Jur Trials 465, Defending Minor Felony Cases. Federal Statutes 18 U.S.C.A. ss 3161 et seq.. Digests and Indexes L Ed Digest Criminal Law s 48. L Ed Index Continuance or Adjournment; Criminal Law; Dismissal and Discontinuance; Indictment or Information; Speedy Trial. Quick Index Continuance or Adjournment. Quick Index Criminal Law. Quick Index Dismissal or Discontinuance. Quick Index Indictment or Information. Quick Index Speedy Trial. Federal Quick Index Continuance and Adjournment. Federal Quick Index Criminal Law. Federal Quick Index Dismissal and Discontinuance. Federal Quick Index Indictment and Information. Federal Quick Index Speedy Trial. Research Sources The following are the research sources that were found to be helpful in compiling this annotation.

West Digest Key Numbers Criminal Law 573-575, 576(1), 576(6), 576(9), 577.14, 577.8, 577.9. Indictment and Information 15(1), 15(3). Texts 3 Wharton's Criminal Procedure (12th Ed.), s 420. [FN1]. The present annotation supersedes the one at 30 ALR2d 462.

[FN2]. See 21A Am Jurisprudence 2d, Criminal Law ss 657, 852. [FN3]. See 21A Am Jurisprudence 2d, Criminal Law ss 652, 849. [FN4]. See 21A Am Jurisprudence 2d, Criminal Law ss 662, 856. *34706 [FN5]. Tolling, as used in this annotation, is not to be confused with the exclusion of certain periods of time under the speedy trial statutes. The statutes often provide that certain periods of time, as for example the time expended under defense motions, are excluded when adding up the number of days expired between the starting point of the speedy trial period and the trial of the accused. In these situations, the speedy trial period continues to run out, except that the excluded periods of time are disregarded. See 21A Am Jurisprudence 2d, Criminal Law ss 662, 861, 862. [FN6]. For a general discussion of a defendant's waiver of the right to a speedy trial, see 21A Am Jurisprudence 2d, Criminal Law ss 664, 665, 865-867. [FN7]. See, for example, Clark v State (1975, Fla App -4) 318 So 2d 513, in which the court held that the defendant's waiver of his speedy trial rights filed under the original indictment likewise applied to the subsequent information based on the same criminal episode or conduct. The court concluded that the waiver continued to apply to the subsequent information so long as the defendant made no motion for a speedy trial after the new information was filed, which motion would have required that he be brought to trial within 60 days from the filing date of the motion. The court also noted that the defendant's statutory speedy trial right was reinvoked by his motion for a discharge, but he was not entitled to a discharge in this case where he was brought to trial within 90 days after the denial of that motion. [FN8]. See People v Dorian (1963, 2d Dept) 18 App Div 2d 1008, 238 NYS2d 633, where the court held that the period between the dismissal of the prior accusatory instrument and the return of the subsequent accusatory instrument was not to be counted when computing the time elapsed under the speedy trial statute. [FN9]. But see United States v La Tender (1979, ED Wis) 464 F Supp 607, where the court held that the speedy trial time ran from the date of the subsequent indictment even though the original indictment charging the same crime was dismissed at the request of the government. The court stated that the Speedy Trial Act (18 U.S.C.A. s 3161) provided that the time limits set forth in the statute ran from the date of the subsequent indictment where the defendant was reindicted for the same offense. [FN10]. For federal cases, see s 5[b], supra.

[FN11]. The decision of the court in State ex rel. Back v Starke Circuit Court (1979) 271 Ind 82, 390 NE2d 643, was overruled to the extent it held that when an identical charge is refiled, it must be regarded as if there has been no dismissal of the first affidavit, or as if the first affidavit was filed on the same date as the first.

However, with respect to the holding in Back, that the period during which a trial must be brought commences with the filing of the first indictment, even if the indictment is dismissed on the motion of the accused, see s 12, infra. [FN12]. But see State v Ransom (1983) 234 Kan 322, 673 P2d 1101, 39 ALR4th 891, cert den (US) 83 L Ed 34, 105 S Ct 88, infra s 8[c], in which the court held that the speedy trial period began to run from the defendant's arraignment under the subsequent information where the dismissal of the initial information due to the unavailability of two medical witnesses was based on necessity. [FN13]. But see State v Hunt (1982) 8 Kan App 2d 162, 651 P2d 967, supra s 8[b], in which the court held that the period between the arraignment and the dismissal under the first information was included in the speedy trial computation where the dismissal based on the unavailability of a witness was obtained without a showing of necessity. [FN14]. To the extent that the court on Back, supra, held that the second indictment was deemed to have been filed on the same date as the first indictment, it has been overruled by the court in Bently v State (1984, Ind) 462 NE2d 58, discussed in s 8[b] supra, where it was held that the state may only be charged for the period the accused was held under the original indictment. *34707 [FN15]. See People v Cullen (1979) 99 Misc 2d 646, 416 NYS2d 1011, and People v Boykin (1979) 102 Misc 2d 381, 423 NYS2d 366, wherein the courts held that the dismissal of the initial complaints for failure to prosecute terminated the criminal actions against the defendants and that the subsequent filing of indictments charging the same crimes started the speedy trial period running anew. [FN16]. But see People v Ramkisson (1982) 114 Misc 2d 535, 452 NYS2d 127, where the court, denying a defendant's motion to dismiss an indictment for violation of the speedy trial statute, held that the 6-month period would be extended where the absence of sufficient evidence to warrant a grand jury presentation constituted an exceptional circumstance permitting an extension of the time period. The defendant was originally charged in a felony complaint with grand larceny of bank coupons valued in excess of $250, but that complaint was dismissed for failure to prosecute. The subsequent indictment returned against the defendant charged him with having stolen coupons with a value in excess of $1,500, a higher degree of grand larceny than that in the original complaint. While acknowledging the holding of People v Osgood (1980) 52 NY2d 37, 436 NYS2d 213, 417 NE2d 507, on remand (2d Dept) 80 App Div 2d 620, 436 NYS2d 61 and on remand (2d Dept) 80 App Div 2d 623, 436 NYS2d 65, supra, that the dismissal of a felony

complaint does not toll the speedy trial statute, the court noted that Osgood recognized that the absence of sufficient evidence to present to a grand jury could constitute an "exceptional circumstance" where additional time was required to obtain the necessary evidence and the state exercised due diligence in bringing that evidence before the grand jury. The court found that the additional evidence here did not become available until shortly before the indictment was obtained and that such evidence was needed to corroborate the defendant's confession. [FN17]. The court in State v Cattee (1983) 14 Ohio App 3d 239, 14 Ohio BR 268, 470 NE2d 421, disagreeing with the court in Sauers, supra, held that where a felony complaint is filed, the accused is bound over for the grand jury, and an indictment for a misdemeanor is returned upon the same conduct which formed the factual basis for the felony complaint, the statutory time limitations respecting time of trial of the misdemeanor apply subject to the limitation that the time for trial for the misdemeanor shall not exceed the statutory period in which the felony would have been required to be tried had a felony indictment been returned.