
    STATE of Louisiana v. Stephret HARVEY.
    No. 2003-KK-1118.
    Supreme Court of Louisiana.
    June 20, 2003.
    CALOGERO, C.J., concurs in denial and assigns reasons.
    JOHNSON, J., to grant for Justice WEIMERS reasons assigned.
    WEIMER, J., would grant the writ and assigns reasons.
   h CALOGERO, Chief Justice

concurs in the denial of the writ application:

Here, as in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the trial judge denied the motion to quash and has a great deal of discretion in that regard. The facts of this case are, in some respects, stronger for the defendant-i.e., the district attorney twice entered nolle grosses when the trial judge denied his motion for continuance then reinstituted charges, the motions for continuance were not based on valid reasons, and the defendant has been incarcerated since his arrest. However, the defendant cannot jump the first hurdle of the test established by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for showing that his right to a speedy trial has been violated since only eleven months passed between the filing of the bill of information and the filing of the motion to quash, and that period of time is insufficient to show a presumptively prejudicial delay. Since the defendant cannot establish the first Barker factor, the other factors should not be considered. Accordingly, the trial court did not abuse his discretion in denying the defendant’s motion to quash.

¶WEIMER, J.,

dissenting from the denial of the writ application.

When this matter was originally set for trial, the State made an oral motion for continuance, which the trial court denied. The State then entered a nolle prosequi of the first bill of information. Subsequently, the State filed a second bill of information for the same offenses. Thereafter, the trial court set the matter for trial. On the day of trial, the State orally moved for a continuance that was denied. The State then entered another nolle prosequi of the second bill of information. Thereafter, the State filed ■ a third bill of information. When this matter was set for trial a third time, the defense filed a motion to quash the third bill based on a violation of the defendant’s right to a speedy trial.

In the trial transcript, the trial judge states that the State never gave a reason for its delay in bringing the defendant to trial. The trial judge indicated “the delays were based on just the negligence of [the prosecutor’s] predecessors in not knowing what was on the docket on any given day and for some reason not being able to put this case in a position to go to trial.” The trial judge also concluded that in his opinion there were lengthy delays in this case.

Not once, but twice, the State entered nolle prosequi after being denied oral motions for continuances on the day of trial. For the reasons assigned in my dissent Lin State v. Love, 2000-3347, (La.5/23/03), 847 So.2d 1198, I would grant this writ for the purpose of further evaluation of the facts and applicable law.  