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Speedy Trial

State v. Richard P. Flehmer, 2012AP534-CR, District 3, 9/18/12

court of appeals decision (1-judge, ineligible for publication); case activity

Delay of 29 months (22 of which attributable to state) between filing of complaint and trial, while presumptively prejudicial, didn’t violate 4-factor test for right to speedy trial:

¶15      Balancing all four factors, we conclude Flehmer’s right to a speedy trial was not violated.  Although the ­­­twenty-two month delay attributable to the State is a long period of time, no part of that delay is weighed heavily against the State because the delay was caused by the court’s congested calendar.  Moreover, the State points out the delay in Barker was even longer than in this case and, in Barker, the Court did not find a speedy trial violation.  See Barker, 407 U.S. at 534 (no speedy trial violation even with five-year delay).  Flehmer failed to file a reply brief and therefore has not refuted this argument.  See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed conceded).

¶16      Further, balanced against the length of time is Flehmer’s failure to assert his right to a speedy trial, which makes it difficult to determine whether he wanted a speedy trial.  See Barker, 407 U.S. at 532.  Additionally, the circuit court noted that it appeared Flehmer wanted the trial delayed in order to keep his commercial driver’s license and job, and his motion practice was consistent with the court’s observation.  Finally, Flehmer has only shown minimal prejudice.  Based on the totality of the circumstances, we conclude the circuit court correctly denied his motion to dismiss the charges.

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