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ELECTRONICALLY FILED
3/3/2021 5:58 PM
38-CC-2020-000798.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK
IN THE CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA

STATE OF ALABAMA, )
)
Plaintiff, )
)
vs. ) CASE NO. CC-2020-798
)
)
ANDRE LAVELLE WEBSTER, )
)
Defendant. )

MOTION TO DISMISS

COMES NOW, the Defendant, Andre Webster, by and through counsel of record, and

moves this Honorable Court for a dismissal of the charges against him for a violation of his right

to a speedy trial guaranteed him by the Sixth Amendment to the United States Constitution and

Article I, § 6 and 13 of the Alabama Constitution of 1901. In support of this motion, Defendant

states the following:

1. Webster is charged with Robbery in the First Degree. The events which serve as

the basis for these allegations occurred prior to May of 2013. Webster was indicted by the May

2013 term of the Grand Jury of Houston County on one count of Robbery I. No detainer was

placed until the year 2020. Webster was finally served with the indictment on December 8,

2020.

2. At the time of the investigation by the Dothan Police Department, Webster was in

the custody of the Chilton County Sheriff’s Department on an unrelated charge (CC-2013-324).

Webster was later transferred to the Alabama Department of Corrections on that charge. Seven

(7) years and eight (8) months passed between the Houston County indictment and the writ of the

arrest on said indictment. During this time, Webster was never served with the warrant nor was
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he transported back to the Houston County Jail to be arrested on the pending charges until

December of 2020. For all purposes, Webster believed this matter was resolved.

3. In October of 2020, Webster learned of the Houston County detainer being placed

on his file when he received notice of his upcoming parole hearing. Webster filed a Motion for

Speedy Trial in November of 2020. He was transported to the Houston County jail on December

6, 2020, and arrested on the pending indictment. This official arrest date on the grand jury

indictment is December 8, 2020.

4. An accused is guaranteed the right to a speedy trial by the Sixth Amendment to

the United States Constitution and by Article I, § 6 of the Alabama Constitution. In Barker v.

Wingo, 407 U.S. 514 (1972), the United States Supreme Court established a four-part balancing

test to determine when a criminal defendant has been denied his or her Sixth Amendment right to

a speedy trial. The four factors to be balanced are (1) the length of the delay, (2) the reasons for

the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. None

of the factors is absolutely determinative to the resolution of the issue. None of the factors is

absolutely necessary to the resolution of the issue. Rather, each factor is related and must be

considered in conjunction with the other. A consideration of these factors indicates that the

Defendant has been denied his right to a speedy trial, and that these charges should be dismissed.

The Length of the Delay:

5. The first factor is a trigger mechanism. If the delay is excessive, there is a

presumption of prejudice. Barker, 407 US. At 530; Doggett v. United States, 505 U.S. 647, 112

S.Ct. 2684, 120 L.Ed.2d 520 (1992) (hereinafter “Doggett”). There is no set period. Rather, the

length of the triggering period is dependent upon the circumstances of each individual case.

Barker, 407 U.S. at 530. Generally, however, courts have held that a one-year delay is enough to

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trigger the Barker inquiry. Doggett, 505 U.S. at 652 n.1, citing, W. Lafave & J. Israel, Criminal

Procedure, § 18.2, p. 405 (1984) and Gregory P.N. Joseph, Speedy Trial Rights in Application,

48 Fordham L. Rev. 611, 623 n.71 (1980). The Court noted in Barker that the delay tolerated for

ordinary street crimes is considerably less than that tolerated for complex charges in that the

trigger will be tripped at a much earlier point. For example, the following delays have been

found presumptively prejudicial: 35 month delay in drug and gun case presumptively prejudicial,

United States v. Grimmond, 137 F.3d 823, 828 (4th Cir. 1998); 22 month delay between

indictment and trial in drug importation case, United States v. Trueber, 238 F.3d 79, 87-88 (1st

Cir. 1002); 11½ month delay for "garden variety" robbery, Cain v. Smith, 686 F.2d 374 (6th Cir.

1982); 9 month delay in burglary case, Tucker v. Wolff, 581 F.2d 235 (9th Cir. 1978); 6 month

delay in case involving forging and uttering a bad check, United States v. Simmons, 536 F.2d

827 (9th Cir. 1976); 8 month delay in bail jumping case, United States v. Johnson, 579 F.2d 122

(1st Cir. 1978); 9 month delay in conspiracy to distribute cocaine case, United States v. Faye,

405 F.2d 1037 (1st Cir. 1974). If, however, the delay is long enough, a presumption of prejudice

alone may be sufficient to establish prejudice to the defendant. According to the Supreme Court

of the United States in Doggett, excessive delay -- in that case 8½ years -- presumptively

compromises in ways that cannot, and, therefore, need not, be proved. Hence, the defendant is

entitled to dismissal if he establishes presumptive prejudice and the government does not rebut it.

Accord, United States v. Schlei, 122 F.3d 944 (11th Cir. 1997)(2 year delay presumptively

prejudicial rendering remaining Barker analysis unnecessary); United States v. Shell, 974 F.3d

1035, 1036 (6th Cir. 2001)(5 year delay between charge and arrest attributable to government

negligence); United States v. Brown, 169 F.3d 344, 351 (6th Cir. 1999)(5 ½ year delay).

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6. “The length of the delay is measured from the date of the indictment or the date of

the issuance of an arrest warrant - whichever is earlier - to the date of the trial.” Roberson v.

State, 864 So. 2d 379, 394 (Ala. Crim. App. 2002). Alabama Code § 15-3-7 (1975) directs that a

prosecution is commenced by the finding of an indictment, the issuing of a warrant, or by the

binding over of the defendant to a grand jury. Commencement of the prosecution is the event

that triggers the defendant’s right to a speedy trial. Steeley v. City of Gadsden, 533 So. 2d 671

(Ala. Crim. App. 1988); Mansel v. State, 716 So. 2d 234 (Ala. Crim. App. 1997).

7. The State’s delay of seven years and eight months since the time of the indictment

until the time of the arrest, to prosecute the allegations of robbery is presumptively prejudicial

and unreasonable.1 Time periods shorter than this have been determined to be presumptively

prejudicial, requiring an analysis of the remaining Barker factors. In Beaver v. State, 455 So. 2d

253 (Ala. Crim. App. 1984), a delay of only 16 months was presumptively prejudicial; 19

months was prejudicial in Ingram v. State, 629 So. 2d 800 (Ala. Crim. App. 1983); 26 months

was presumptively prejudicial in Mansel v. State, 716 So. 2d 234 (Ala. Crim. App. 1997); a

delay of over 26 months was presumptively prejudicial in Broadnax v. State, 455 So. 2d 205

(Ala. Crim. App. 1984); and a delay of three years was presumptively prejudicial in Ex parte

Clopton, 656 So. 2d 1243 (Ala. 1995). Clearly, a delay of 7 years and 8 months from the date of

indictment until arrest creates a presumption of prejudice to the Defendant and triggers an

analysis of the other three Barker factors.2

1
“To take but one example, the delay that can be tolerated for an ordinary street crime is
considerable less than for a serious, complex conspiracy charge.” Barker v. Wingo, 407 U.S.
514, 531 (1972).
2
Although the courts state that the finding of a presumption of prejudice is a prerequisite
to addressing the other factors, it appears the court should also consider all four factors even in
cases where it is a close call. In Clancy v. State, 866 So. 2d 166 (2003), even though the Court
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The delay in this case since the alleged conduct first occurred triggers the Barker inquiry.

The Reason for the Delay:

8. The second factor requires an examination of the reasons for the delay. In

Doggett, the Supreme Court of the United States held that governmental negligence is an

unacceptable reason for delay. The longer the delay, the less tolerance the court should have for

the negligence. Doggett, 505 U.S. at 657. The inaction in this case is due, at best, to the State of

Alabama just being slow or negligent. The charges in this case are simple. There is no good

reason for Webster to have been waiting on resolution of these charges for well over 7 years

since the return of the indictment. The delay, at best, is attributable solely to governmental

slowness or negligence.

9. Webster was in the custody of the Chilton County Sherriff’s Department (on

unrelated case CC-2013-324), while the Dothan Police Department was investigating the

pending charge. Webster plead guilty in Chilton County on May 15, 2014, and was sentenced to

the Alabama Department of Corrections.

10. The Houston Grand Jury indicted Webster for Robbery I during the May 2013

term. The Writ of Arrest on the Houston County charge was issued June 21, 2013.

11. The Dothan Police Department knew Webster was housed in the Chilton County

Jail on the other charge. The Houston County indictment even listed the Clanton Police

Department as a witness.

12. Webster remained in the Alabama Department of Corrections serving his sentence

for the unrelated crime from Chilton County for almost seven years. Webster remained unaware

of Criminal Appeals could not “clearly conclude that the 19-month delay in Clancy’s case was
presumptively prejudicial,” the court chose to review the remaining three factors “in an
abundance of caution.” 866 So. 2d at 172.

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of the indictment in Houston County, but sent in a motion for speedy trial within one month of

learning of the detainer.

13. While housed in Chilton County jail, an officer from the Dothan police

department met with Webster and obtained a DNA swab. The officer told Webster he would see

him again IF there was a match. This was close to eight years ago.

14. Webster was not made aware of the indictment until he received notice in October

of 2020 of his parole hearing (actually held March 2, 2021). And it was not until the

Defendant’s speedy trial motion that he was transferred to Houston County to be arrested and

arraigned on this pending charge. The Writs of Arrest previously mentioned indicate the date of

arrest as December 8, 2020.

15. During this entire 7 year and 8 month delay, Webster’s either been incarcerated in

the Alabama Department of Corrections or the custody of the Chilton County Sheriff. Under

these circumstances, it is clear that the responsibility for this delay rests fully upon the State.

Thus, the second Barker factor weighs heavily in Webster’s favor.

The Defendant’s Assertion of the Right:

16. The third factor focuses on whether and how the defendant asserted his speedy

trial right. In Doggett, the Court held that a defendant is "not to be taxed for invoking his speedy

trial right only after his arrest". 505 U.S. at 654. It should be noted that a criminal defendant has

no duty to bring himself or herself to trial. Smith v. State, 409 So. 2d at 962. Webster is filing

this motion within a few months of service of the indictment in this case. Webster filed a motion

for speedy trial within a month of finding out about the detainer.

17. Webster remained unaware that the Houston County grand jury had returned the

indictment against him for robbery in Houston County. He believed the case was resolved when

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he resolved his case in Chilton County. There is some support to this argument. Webster had a

pending charge in yet another county (Elmore) at the time. The District Attorney moved to

dismiss the charge in CC-2018-337 pursuant to a plea agreement in CC-2013-324 (the Chilton

County case). The charge was dismissed on August 21, 2018.

18. Webster is prejudiced in his ability to prepare for a defense in the Houston County

case. He’s been locked up this entire time. Witnesses and exculpatory evidence are likely lost at

this point. The responsibility for serving the Defendant (and bringing this matter to trial) rests

entirely with the State.

19. A criminal defendant has no duty to bring himself or herself to trial. Smith v.

State, 409 So. 2d at 962. Further, in Barker, the Court held that a defendant does not waive the

right to a speedy trial by failing to make a specific request for one. 407 U.S. at 518.

Nonetheless, Webster, upon being made aware of the indictments, immediately filed a motion for

speedy trial in an effort to resolve the outstanding indictment. Webster did not have a duty to

determine if there were outstanding warrants for his arrest, and he certainly has no reason to

believe that the Alabama Department of Corrections had not been notified of pending

indictments.

20. Under these circumstances, Webster asserted the right to a speedy trial at the

earliest opportunity afforded to him, which has occurred after his right to a speedy trial had

already been denied. Thus, the factor of assertion of the right to a speedy trial rests heavily in

Webster’s favor.

The Prejudice to the Defendant:

21. The fourth factor focuses on prejudice. Webster asserts that under the

circumstances of this case, prejudice must be presumed. Under our constitutional jurisprudence,

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the government bears the burden of the law's delay. The constitutions of the United States and

the State of Alabama does not tolerate negligence when government officials attempt to bring an

accused to trial. When a defendant has been prejudiced by an unreasonable delay, the charges

against him or her must be dismissed. State v. Horton, 373 So. 2d 1092 (Ala. Crim. App.), aff’d

373 So. 2d 1096 (Ala. 1979).

22. A delay is prima facie prejudicial when the result of the excessive delay is the

result of inaction by the State. Ex parte Clopton, 656 So. 2d 1243 (Ala. 1995).

23. Unreasonable delay between indictment and trial presents multiple types of harm

to the Defendant including “’the possibility that the [accused’s] defense will be impaired’ by

dimming memories and loss of exculpatory evidence.” Doggett v. United States, 505 U.S. 647

(1992), quoting Barker v. Wingo, 407 U.S. 514 (1972). This is the most serious type of

prejudice because it creates an inability of the Defendant to adequately prepare his case skewing

the fairness in the system. Id.

24. The Alabama Court of Criminal Appeals has recognized others factors that may

prejudice the Defendant including, the possibility of serving concurrent sentences with a

sentence a defendant is already serving, being revoke off of parole, and having an effect on a

defendant’s inmate classification status such as to the ability to participate in programs such as

work release. In this case, there was definitely a “possibility” of the Defendant having his

sentences to run concurrently. He was interviewed by the Dothan police department while in the

custody of the Chilton County Sheriff’s Department, and later plead guilty and was sentenced to

the Alabama Department of Correction on May 15, 2014. The fact that the Houston County case

arose at the same time the Defendant was being prosecuted by Chilton County shows there was

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definitely a “possibility” of concurrent sentences that has long since passed in the last seven (7)

plus years.

25. Webster’s parole hearing was continued from March 2, 2021, until April 7, 2021.

It can reasonably be assumed the hearing was continued based on the charge out of Houston

County.

A consideration of the four factors clearly demonstrates that the Defendant has been

denied his right to a Speedy Trial as guaranteed by the United States Constitution and the

Constitution of the State of Alabama. The Defendant requests that the charges pending against

him be dismissed.

26. Finally, this Honorable Court should consider the Houston County Circuit Court

case of State of Alabama v. John Michael Sparks, CC-2001-72, as local precedent in the instant

matter. In Sparks the Defendant was indicted in June of 1992, but was not arrested on the matter

until January of 2001. Sparks had entered guilty pleas to similar offenses in Montgomery,

Autauga, and Elmore Counties and was sentenced to concurrent time for those 3 counties.

Houston County however failed to place any type of detainer warrant on Sparks and was

therefore not arrested until after being released on parole. The Honorable Lawson Little, retired

Houston County Circuit Judge, granted Sparks’ Motion to Dismiss for violation of his right to a

speedy trial.

WHEREFORE, the above premises considered, the Defendant respectfully requests that

this Honorable Court dismiss the charge in the above-styled case.

RESPECTFULLY SUBMITTED this the 3rd day of March, 2021.

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/s/ Aimee C. Smith___ _____________

AIMEE C. SMITH (SMI 220)
Law Offices of Aimee C. Smith, P.L.L.C.
22 Scott Street
Montgomery, Alabama 36104
(334) 264-6466

CERTIFICATE OF SERVICE

This is to certify that I have this day electronically filed a copy of this document with the
Clerk of the Court using the e-file system, which will send notification of such filing to all
counsel of record.

DONE on this the 3rd day of March, 2021.

/s/ Aimee C. Smith

OF COUNSEL
006-21/M2Dismiss1.7

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