Petition for review allowed January 30, 1973; On review from Court of Appeals.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for petitioner.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Defendant was convicted of the illegal sale of narcotics and his conviction was affirmed by the Court of Appeals, 11 Or App 324, 501 P2d 1324 (1972). We allowed defendant's petition for review.
The only issue we will consider on review is the claim by defendant that he was denied a speedy trial. The indictment alleged that the illegal sale of narcotics was made on September 27, 1971. Defendant was indicted on February 15, 1972, and tried on March 24, 1972. He does not complain of the lapse of time between indictment and trial. He does complain, however, of the 141 days between the time he made the alleged sale to an undercover agent and the time he was indicted. Defendant argues that the state had all information concerning his guilt on the day of the crime which he is alleged to have committed, and that its delay in returning the indictment prejudiced him because his memory during the interim failed him concerning his whereabouts on the day of the crime.
The Court of Appeals, in its opinion in this case, stated at 11 Or App at 327:
"The trial judge did not err in denying defendant's motion to dismiss for lack of a speedy trial. The time interval involved (141 days), between the sale of heroin charged in the indictment and the return of the indictment, was not excessive. Defendant failed to establish that he had been prejudiced thereby."
In State v. Griffin, 7 Or App 19, 489 P2d 985 (1971), it also said:
"We are persuaded that under certain circumstances the Sixth Amendment speedy trial right may apply to the period after the prosecution decides to proceed and has sufficient evidence for arrest or indictment * * *." (Footnote omitted.) 93 Adv Sh at 764.
It is thus apparent that the Court of Appeals believes that the time between the state's knowledge of a violation of the law by a defendant and its charging him with that violation may be taken into consideration in determining whether he has been given a speedy trial. The Court of Appeals is in error in this respect. The right of a speedy trial is given by the Sixth Amendment of the United States Constitution and by Article I, section 10, of the Constitution of the State of Oregon.*fn1 Concerning the Sixth Amendment, the Supreme Court of the United States held in United States v. Marion, 404 U.S. 307, 92 S Ct 455, 30 L Ed 2d 468 (1971):
"* * * [I]t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the ...