No. CX-97-1536.Minnesota Court of Appeals.
Filed April 14, 1998.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
Appeal from the District Court, Hubbard County, File No. K196693.
Hubert H. Humphrey, III, Attorney General, Natalie E. Hudson, Assistant Attorney General, and Gregory D. Larson, Hubbard County Attorney, Courthouse, (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Mansur, Judge.[*]
UNPUBLISHED OPINION
CRIPPEN, Judge
Appellant Gerald Simonson appeals from his fifth degree drug conviction, contending that he was deprived of his speedy trial rights because his trial was held 45 days beyond the 60-day limit provided by rule. We affirm.
FACTS
The court initially set a March 13, 1997 trial date, but that date was changed to March 27 due to the judge’s illness. On March 26, the prosecutor was granted a continuance because three of its five witnesses, including the informant, were unavailable to testify on the following day. The court rescheduled the trial for May 9, 1997; 105 days after appellant’s demand for a speedy trial.
DECISION
Both the United States and Minnesota Constitutions give criminal defendants the right to a speedy trial. U.S. Const. amend. VI, XIV; Minn. Const. art. I, § 6. In determining whether that right has been violated, Minnesota courts follow the balancing test set forth in Barkerv. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188 (1972). State v.Friberg, 435 N.W.2d 509, 512 (Minn. 1989). The Barker test involves an evaluation of four factors: 1) length of delay, 2) reason for delay, 3) whether the defendant asserted the right, and 4) whether there was any prejudice. 407 U.S. at 530-32, 92 S.Ct. at 2192-93. In Minnesota, absent “good cause” for delay, the trial is to commence within 60 days after demand for a speedy trial. Minn.R.Crim.P. 6.06, 11.10. Delay for more than 60 days is presumptively prejudicial, but speedy trial rights are not offended so long as the delay is for good cause. Friberg, 435 N.W.2d at 512-13. An assessment of good cause requires consideration of three of the Barker factors: the assertion of speedy trial right, the reason for delay, and the extent of prejudice suffered. Id. It is not disputed that appellant properly demanded a speedy trial on January 24, 1997.
Appellant does not dispute that there was good cause for postponements on March 13 and March 26, noting only that these delays could not be attributed to the defense. He contends that the fatal delay occurred earlier, without good cause, when the prosecutor failed to disclose evidence. He argues that an earlier prosecution disclosure would have enabled him to enter his plea and speedy trial demand at the November 22, 1996, Rule 8 hearing. See Minn.R.Crim.P. 11.10 (providing speedy trial time period does not begin before entry of not guilty plea).
Appellant’s argument fails because there is no evidence that appellant would have entered his plea on November 22 had the state’s disclosure been made earlier. Equally important, there is no evidence to suggest that a trial demanded in November would have been unduly delayed. Thus, there is no significance to the delay, whatever the cause, in November 1996.
Appellant also has failed to show prejudice beyond what is presumed by the weeks of delay. Appellant speculates that his heart attack during the pendency of the case could have been associated with the delay, but there is no evidence showing this tie. Appellant claims his defense was impaired and his expenses enlarged by the delay but has not shown how this is true.
The delay in this case was for good cause, violating neither the governing rule nor the constitutional guarantee.
Affirmed.