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IN THE COURT OF APPEALS 07/02/96 OF THE STATE OF MISSISSIPPI
NO. 92-KA-01048 COA

TOMMY D. DREW APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. WILLIAM F. COLEMAN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHRIS N. G. GANNER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS DISTRICT ATTORNEY: GLENDA HAYNES NATURE OF THE CASE: BUSINESS BURGLARY TRIAL COURT DISPOSITION: GUILTY OF BUSINESS BURGLARY, SENTENCED TO SERVE SEVEN (7) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS BEFORE FRAISER, C.J., DIAZ, AND MCMILLIN, JJ. DIAZ, J., FOR THE COURT: Tommy D. Drew (Drew) was tried and convicted of business burglary by the Hinds County Circuit

Court and sentenced to serve seven years in the custody of the Mississippi Department of Corrections as a habitual criminal. Feeling aggrieved, Drew appeals to this Court and cites two errors: (1) the trial court erred in denying his motion to dismiss for failure to afford a speedy trial and (2) the verdict was against the overwhelming weight of the evidence. Finding no reversible error, we affirm.

FACTS Martha H. Lyell (Lyell) owned and operated the Home Kitchen, a small delicatessen located on Ridgewood Road. At approximately midnight on October 25, 1991, Lyell received a call from the Jackson Police Department (JPD) informing her that someone had broken into the Home Kitchen. JPD arrested Drew that evening in connection with the burglary. When arrested, Drew was out on parole from a previous conviction. This arrest revoked his parole, and he remained in jail until trial. On April 9, 1992, Drew was indicted for business burglary, and trial was scheduled for August 12, 1992. Drew filed a motion to dismiss indictment for failure to afford a speedy trial on August 5, 1992. A continuance from August 12, 1992 to September 15, 1992 was granted to Drew on August 12, 1992, because his attorney was in trial on another case. On September 14, 1992, the day before trial, Drew filed another motion to dismiss for failure of a speedy trial. The motion was denied and following a jury trial in Hinds County Circuit Court, Drew was found guilty of business burglary. DISCUSSION 1. Did the Trial Court Err in Denying Drew's Motion to Dismiss for Failure to Afford a Speedy Trial?

Drew contends that his constitutional right to a speedy trial was violated due to the time period between his arrest and date of trial. He further argues that this delay, exceeding eight months, greatly prejudiced his case because he was unable to recall all of the events of the night in question. He also claims the delay caused him to suffer prejudice because of great mental anxiety and concern. The State argues that the trial court correctly overruled Drew's motion to dismiss because Drew did not prove that he suffered prejudice from the delay. When an accused asserts a violation of his constitutional right to a speedy trial, the court must balance four factors to determine if the claim is meritorious. The four factors to be considered were established in Barker v. Wingo, 407 U.S. 514 (1972). The factors are: (1) length of the delay, (2) reason for the delay, (3) whether the defendant has made a timely assertion of his right to a speedy trial, and (4) whether the defendant has suffered any prejudice by the delay. Barker, 407 U.S. at 530. A. Length of Delay The right to a speedy trial attaches on the date of the defendant's arrest. Johnson v. State , 666 So. 2d

784, 792 (Miss. 1995). Thus, Drew's right to a speedy trial commenced on October 25, 1991, the date of his arrest. A period of 325 days elapsed between the date of arrest and the trial which ended in his conviction. The Mississippi Supreme Court has found delays in excess of eight months presumptively prejudicial. Thorson v. State, 653 So. 2d 876, 890 (Miss. 1994); Spencer v. State 592 So. 2d 1382, 1387 (Miss. 1991). Drew's 325 day delay sufficiently meets the first prong of the Barker test and is presumptively prejudicial. However, a delay of this nature will not, in itself, require reversal but will require a scrutiny of the remaining Barker factors. Johnson, 666 So. 2d at 792. B. Reason for Delay There is one period of delay attributable to the State and one attributable to the defense. A period of 166 days elapsed from Drew's arrest to the issuance of the indictment on April 9, 1992. The State has not attempted to explain the reason for this delay. Thus, this time period weighs against the State. Rhymes v. State, 638 So. 2d 1270, 1272 (Miss. 1994). The next period concerns the 47 days between the indictment and arraignment on May 26, 1992. The trial judge stated on the record that this was a reasonable time for having a prisoner return from Parchman for the purpose of arraignment, and this Court agrees that this time period was reasonable. Thus, this 47 day delay will not be attributable to the State or the defense. The next period was a 79 day period between the date of arraignment and the first trial date scheduled for August 12, 1992. The trial judge stated on the record that the time period between Drew's arraignment on May 26, 1992, and his trial date of August 12, 1992, was the earliest available date the case could be set following the arraignment. This period will not be weighed heavily against the State since docket congestion can furnish good cause for delay, and this time period was needed by both sides to prepare for trial. Jasso v. State, 655 So. 2d 30, 34 (Miss. 1995). The final time period concerns from August 12, 1992, to September 14, 1992, when a continuance was requested by and granted to the defense. This period is attributed to the defense. Handley v. State, 574 So. 2d 671, 674 (Miss. 1990). C. Assertion of Right to Speedy Trial Drew asserted his right to a speedy trial by motion to dismiss on August 5, 1992, and September 14, 1992. Drew's first motion was filed only ten days prior to the trial date and his second motion was filed one day prior to the trial date. This late filing is not fatal to his claim, but it does not weigh as heavily in his favor as an earlier assertion of this right. Johnson, 666 So. 2d at 793. D. Prejudicial Effect of Delay There are three types of prejudice a defendant may suffer due to delay: (1) pretrial incarceration; (2) anxiety and concern; and (3) impairment of the defenses. Atterberry v. State, 667 So. 2d 622, 627 (Miss. 1995). Although the accused is not required to affirmatively prove prejudice to prevail on a speedy trial violation claim, an absence of actual prejudice weighs against the finding of a violation. Id. In this case, Drew claims prejudice due to incarceration, loss of memory, anxiety and concern. With respect to his incarceration, Drew remained in custody the entire period following his arrest on October 25, 1991. When arrested, he had been on parole from a previous conviction. Parole is a privilege and not a right and can be revoked upon a showing of a "probable violation." Miss. Code Ann.

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