CHAPTER 12

SPEEDY TRIAL

§ 12.01 Sources of the Right

§ 12.02 The Right to Speedy Criminal Proceedings

§ 12.03 - Length of the Delay

§ 12.04 - Reasons for the Delay

§ 12.05 - Assertion of the Right

§ 12.06 - Prejudice

§ 12.07 Administrative Order 5

§ 12.08 Rule 48(b)

§ 12.09 Proceedings Not Governed by the Sixth Amendment

and Article 10

§ 12.10 - Due Process

§ 12.11 - The State Right to "Prompt Justice"

§ 12.01

Sources of the Right

The sixth amendment and chapter I, article 10 of the state constitution both guarantee the defendant's right to a "speedy" trial{1} and Administrative Order 5 sets guidelines, but the Vermont Supreme Court has almost never found a trial that was not sufficiently speedy. The constitutional measure of speedy trial violations is obligingly elastic, and the administrative order gives defendants no entitlement to trial within a specific timeframe.{2} Trial judges have broad discretion to dismiss old cases and sometimes do, more frequently in misdemeanors than in felonies. But it is the rare case when a refusal to dismiss will be a constitutional or A.O. 5 violation.

§ 12.02

The Right to Speedy Criminal Proceedings

In Barker v. Wingo the United States Supreme Court wrote that it was "impossible to determine with precision when the right has been denied[,]"{3} and stated a flexible four-part test for speedy trial violations. Courts should inquire into (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his or her right to a speedy trial, and (4) the prejudice caused by the delay.{4} None of the factors is "either a necessary or sufficient condition" to finding a speedy trial violation, and they should be considered together with other relevant circumstances.{5} Trial judges have wide discretion in applying the test{6} and, given their reluctance to dismiss serious cases,{7} a fifth unstated factor - the seriousness of the alleged crime - must be counted as at least as important as the official criteria.

The Vermont Supreme Court routinely applies the Barker test as a measure of both sixth amendment and article 10 speedy trial claims,{8} but it has never found a violation.{9}

In State v. Keith the Vermont court, acknowledging that the federal speedy trial right provides a safeguard for only "a very few defendants who have suffered eggregious delays[,]"{9.5} expressly invited state constitutional speedy trial claims. "Reliance on the Vermont Constitution may be necessary because, unlike most states and the federal government, Vermont has no statutory right to a speedy trial to back up the infrequently employed federal constitutional right."{10}

§ 12.03

- Length of the Delay

In 1978 in State v. Franklin the Vermont court held that a delay of eighteen months from citation to trial, thirteen months of which were taken up by a judge's failure to decide a motion to suppress, constituted a per se speedy trial violation.{11} Since Franklin, however, the court has repeatedly said that lengthy delay will not, alone, establish a violation because the right to a speedy trial cannot be "quantified into a specified number of days or months[,]"{12} and the case was finally overruled in 1992.{13} Delay of sufficient magnitude is a "triggering mechanism" which requires analysis of the other Barker v. Wingo factors.{14} The court refers to the guidelines of A.O. 5 - ninety days for defendants in custody and six months for others{15} as the presumptive triggering periods for assessing constitutional violations. Thus, delays (not counting excluded periods) of less than ninety days for a defendant in custody{16} and less than six months for a defendant not in custody{17} will not trigger further speedy trial analysis. When the defendant is in custody on unrelated charges, it is the six-month limit, not the ninety days, which governs.{18} Delays of longer than six months do trigger further analysis.{19}

The computation of the delay is not straightforward and, like the rest of the Barker test, is said to be "discretionary."{20} The time begins to run when the defendant is formally arrested or cited pending a formal charge.{21} It continues through sentencing.{22} Periods that are "excluded" from the calculation under A.O. 5{23} are also excluded from the constitutional analysis.{24} Thus, the court subtracts delays occasioned by a determination of the defendant's competency to stand trial,{25} and delays brought on by the defendant's pretrial motions, requests for continuances, and discovery requests,{26} as well as those caused by the defendant's absence and changes of counsel.{27}

The exclusion for delays occasioned by defendant's pretrial motions even applies to motions to dismiss for lack of a speedy trial.{28} It does not apply, however, if the delay is unreasonably long. Thus, the bulk of the delay in State v. Franklin{29} stemmed from the judge's failure to decide a pretrial motion for thirteen months. And in State v. French{30} the court determined not to exclude a period of over four months during which a pretrial motion was waiting for a decision.

When a mistrial is declared, the court disregards the time from the initial charge to the mistrial, counting only subsequent delays.{31} When a case is dismissed by the trial court without prejudice and then refiled, the court does not count the time elapsed between the dismissal and refiling, inasmuch as no criminal prosecution is formally pending during the interim.{32}

§ 12.04

- Reasons for the Delay

Delays that are attributable to defense strategy are discounted.{33} Intentional delays, and those that are a "deliberate attempt by the prosecution to hinder the defense[,]" are "weighted heavily against the prosecution."{34} Delays attributable to "[a] more neutral reason such as negligence or overcrowded courts" should be weighed against the state, although "less heavily[.]"{35}

Delay caused by a state's interlocutory appeal, taken in good faith and raising "worthy questions" counts very little - the court not surprisingly finds itself "particularly reluctant to assign great prejudicial weight to delay due to appellate procedure."{36}

Delay caused by the defendant's commitment to the state hospital as a person in need of treatment, with the defendant's consent and the state's "apparent willingness . . . to let the defendant remain in a secure facility without any attempt to schedule promptly a trial on the merits[,]" was also found not to count heavily against the state.{37}

§ 12.05

- Assertion of the Right

Failure to assert the right will count heavily against the defendant's speedy trial claim so long as the defendant is not ignorant of the pending prosecution.{38} The right should be asserted in the form of a demand for a speedy trial rather than a motion to dismiss for lack of one. A motion to dismiss is not the equivalent of a demand. "A demand would give the state the opportunity to promptly schedule a trial" whereas defendants "could move to dismiss without themselves being prepared for a trial."{39} Discovery motions demanding production of evidence, although they may indicate a desire for a speedy trial, are also not the equivalent of a demand for a speedy trial.{40}

Failure to make the demand early in the proceedings will count against the claim{41} but cannot be considered a waiver of the predemand delay.{42}

§ 12.06

- Prejudice

Prejudice is considered "the most important factor. . . ."{43} The United States Supreme Court recognizes three kinds of prejudice which the speedy trial guarantee is meant to protect against: "oppressive pretrial incarceration;" "anxiety and concern of the accused;" and "the possibility that the defense will be impaired."{44}

Of these three the Vermont Supreme Court sees "prejudice to the defense at trial" as "[t]he most important consideration. . . ."{45} Establishing such prejudice is not easy, however. The mere possibility of impaired memories is "not a sufficient allegation of prejudice"{46} and even a specific showing of lost witnesses or lapsed memories may not be good enough.{47} Nor is it enough to assert generally that the delay allowed the prosecution to build a stronger case.{48}

Barker's dictum, that prejudice to the defense of trial is the most important interest which the speedy trial clause seeks to protect, is debatable. Before Barker the Court had emphasized that one of the major goals of the speedy trial guarantee was to prevent delays

"which, wholly aside from possible prejudice to the defense on the merits, may `seriously interfere with the defendant's liberty, whether he is free on bail or not, and may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.'"{49}

The Court returned to that view in United States v. MacDonald,{50} de-emphasizing the importance of prejudice to the defense in the speedy trial calculus:

The Sixth Amendment right to a speedy trial is . . . not primarily intended to prevent prejudice to the defense caused by the passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, . . . and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.{51}

In Doggett v. United States,{52} the court rejected an argument that prejudice to the defense was irrelevant in a speedy trial analysis: "Once triggered by arrest, indictment, or other official accusation . . . the speedy trial enquiry must weigh the effect of delay on an accused's defense just as it has to weigh any other form of prejudice that Barker recognized."{53}

Despite Barker's and MacDonald's recognition of the significance of pretrial imprisonment and other disruptions, the Vermont Supreme Court generally gives short shrift to both factors, routinely stressing prejudice to the defense as the sine qua non of a speedy trial claim. In one case the court wrote that the fact of pretrial incarceration "does not help defendant" because he made no "specific allegations of prejudice or anxiety. . . ."{54} The defendant who has been granted pretrial release receives much the same treatment. A claim in one case of anxiety, embarrassment, loss of employment, and stigma from the pendency of sexual assault charges "amount[ed] to nothing more than an `unsupported assertion that delay is per se prejudicial.'"{55} The burdens of embarrassing press coverage "[s]tanding alone . . . [did] not constitute prejudice sufficient to dismiss the charges. . . ."{56} Also, in a Medicaid fraud case, the claim that the pendency of the prosecution hindered the defendant's ability to practice medicine "does not normally constitute the type of prejudice that causes dismissal of a criminal complaint."{57}

Presumptive Prejudice

Although the Vermont Supreme Court no longer recognizes any period of delay as "per se" prejudicial, lengthy delays, especially those caused by intentional conduct but also those attributable to state negligence, can raise a presumption of prejudice that will entitle the defendant to relief unless the prosecution is able to show mitigating factors. In Doggett v. United States{58} the United States Supreme Court held that a negligent delay lasting six years denied the defendant his right to a speedy trial, even though he was unable to demonstrate how the delay prejudiced his defense.

§ 12.07

Administrative Order 5

The federal courts and a number of state court systems have adopted strict speedy trial guidelines requiring dismissal of cases that are not brought to trial within specified periods.{59} Vermont's Administrative Order 5{60} is a weak sibling of these provisions. A.O. 5, the Vermont Supreme Court has repeatedly held, does no more than set up internal operating procedures for the guidance of trial courts and gives defendants no rights that they do not already have from the constitution.{61} It permits, but does not require, dismissal of a criminal case that is not brought to trial within its guidelines.{62} Just as the Vermont court has never found a violation of the Barker v. Wingo speedy trial test, it has never overturned a conviction for violation of A.O. 5.

Nominally, the administrative order requires cases in which the defendant is in custody to "proceed to trial within 90 days from the date of arraignment, except for exceptional circumstances, showing cause for temporary postponement."{63} All cases "shall be prepared and ready for trial within six months from the date of arrest[,]" with a "good cause for an extension" caveat; on a violation the court "may order the complaint dismissed."{64} The order goes on to state the excluded periods with great precision, quite unnecessarily in view of the discretionary character of its sanctions.{65}

Courts are encouraged to give criminal prosecutions preference over civil matters and trial of defendants in custody preference over other criminal cases.{66} Prosecutors are encouraged, when docket congestion is causing delay, to invoke the jurisdiction of other courts.{67}

§ 12.08

Rule 48(b)

A.O. 5, and the court's power to dismiss under V.R.Cr.P. 48(b)(1), come into play only when the six-month and ninety-day limits have been exceeded.{68} But regardless of an A.O. 5 violation, trial judges also have discretion to dismiss cases, with or without prejudice, under V.R.Cr.P. 48(b)(2), in the interests of justice.{69} By authority of this rule courts can dismiss cases that are "clogging the calendar and are not being vigorously pursued by the prosecution."{70}

Such dismissals may be without prejudice, and if so the state is free to refile.{71} A court can specify, however, that the dismissal be with prejudice,{72} and it may properly do so when the state refuses to comply with a scheduling order.{73} The sanction should be used sparingly, however, and ordinarily the prosecutor should be forewarned so that he or she can "choose between going to trial and taking the sanction of dismissal with prejudice."{74}

§ 12.09

Proceedings Not Governed by the Sixth Amendment and Article 10

There are many criminal and quasi-criminal proceedings which the sixth amendment speedy trial guarantee does not cover. The sixth amendment guarantee includes the right to prompt sentencing,{75} but does not apply to later stages of the process: neither a motion for reconsideration of sentence nor an appeal is a part of the "trial" for speedy trial purposes.{76} It also does not apply to early stages of a case, before citation or arrest, when no "criminal prosecution" is pending.{77} Similarly, because probation revocation proceedings are not "criminal prosecutions" under the sixth amendment, the speedy trial guarantee does not apply to any stage of the revocation process.{78} The same is almost certainly true of parole revocation, juvenile proceedings, civil DUI license suspension procedures, extradition and detainer proceedings, and other non- and quasi-criminal actions.{79}

§ 12.10

- Due Process

Excessive delays in proceedings not covered by the speedy trial guarantees may be due process violations. The test is a demanding one, however. The defendant must show "substantial prejudice" caused by the delay,{80} meaning "actual prejudice to the conduct of his defense[,]"{81} and also "that the delay was intentional and caused by a desire to gain tactical advantage."{82}

§ 12.11

- The State Right to "Prompt Justice"

In addition to article 10's speedy trial clause, the Vermont Constitution guarantees the right "to obtain justice . . . promptly and without delay"{83} and insists that justice should be administered "without . . . unnecessary delay."{84} Neither of these clauses is limited to criminal prosecutions or trials, but the extent of their protections is a wide open question. When the delay complained of relates to the final disposition of a criminal case, the right to prompt justice "encompasses three concerns: (1) that incarceration pending sentence could exceed the length of a fair sentence; (2) that excessive delay eliminates the perceived relationship between guilt and penalty; and (3) that delay could prejudice either the State or defendant on retrial."{85}

ENDNOTES

1. The sixth amendment speedy trial guarantee was appliedto the states in Klopfer v. North Carolina, 386 U.S. 213 (1968). Two other sections of the Vermont Constitution also speak to the speedy trial right. Chapter I, article 4 holds that the people have a right "to obtain justice . . . promptly and without delay[,]" and chapter II, article 28 says that justice should be administered "without . . . unnecessary delay[.]"

2. State v. Keith, No. 91-582, slip op. 11 (Vt. May 21, 1993); State v. Unwin, 139 Vt. 186, 195 (1980).

3. Barker v. Wingo, 407 U.S. 514, 521 (1972).

4. Barker v. Wingo, 407 U.S. 514, 530 (1972).

5. Barker v. Wingo, 407 U.S. 514, 533 (1972).

6. State v. French, 152 Vt. 72, 75 (1989); State v. Williams, 143 Vt. 396, 401 (1983); State v. Unwin, 139 Vt. 186, 195 (1980), cert. denied, 450 U.S. 1033 (1981).

7. The remedy for a speedy trial violation is the drastic one of dismissal with prejudice. Strunk v. United States, 412 U.S. 434, 439-40 (1973); Barker v. Wingo, 407 U.S. 514, 522 (1972).

8. State v. Recor, 150 Vt. 40 (1988). It has not, however, explicitly adopted the Barker test as a state constitutional test, and the differences between the state and federal guarantees "have not been `squarely and thoroughly decided.'" State v. Yudichak, 151 Vt. 400, 404 (1989) (quoting State v. Dean, 148 Vt. 510, 515 (1987)).

9. The court rejected speedy trial claims, which were sometimes joined with A.O. 5 claims, in the following cases: State v. Keith, No. 91-582, slip op. 11-17 (Vt. May 21, 1993); State v. Percy, No. 91-131, slip op. 11-12 (May 8, 1992); State v. Lavalette, 154 Vt. 426, 429-30 (1990); State v. Sorrell, 152 Vt. 543, 544-45 (1989); State v. French, 152 Vt. 72, 75-79 (1989); State v. Venman, 151 Vt. 561, 574-76 (1989); State v. Yudichak, 151 Vt. 400, 404-07 (1989); State v. Roy, 151 Vt. 17, 35-37 (1989); State v. Recor, 150 Vt. 40, 41-43 (1988); State v. Ellis, 149 Vt. 264 (1988); State v. Dean, 148 Vt. 510 (1987); State v. Trombley, 148 Vt. 293, 298-300 (1987); State v. Messier, 146 Vt. 145, 162-63 (1985); State v. Snide, 144 Vt. 436, 441-44 (1984); State v. Williams, 143 Vt. 396, 400-07 (1983); State v. Bristol, 143 Vt. 245, 248-49 (1983); State v. Roy, 140 Vt. 219, 228 (1981); State v. Unwin, 139 Vt. 186, 194-97 (1980), cert. denied, 450 U.S. 1033 (1981); State v. Angeluccci, 137 Vt. 272, 277 (1979). The one case since Barker v. Wingo where the court found a speedy trial violation, State v. Franklin, 136 Vt. 569 (1978), overruled in State v. Percy, No. 91-131, slip op. 11-12 (Vt. May 8, 1992), was based on a holding of prejudice "per se" and not an application of the Barker test.

9.5. State v. Keith, No. 91-582, slip op. 15 (Vt. May 21, 1993).

10. State v. Keith, No. 91-582, slip op. 17 (Vt. May 21, 1993).

11. State v. Franklin, 136 Vt. 569, 570-71 (1978).

12. Barker v. Wingo, 407 U.S. 514, 523 (1972); State v. Recor, 150 Vt. 40, 42 (1988); State v. Snide, 144 Vt. 436, 442 (1984).

13. State v. Percy, No. 91-131, slip op. 11-12 (Vt. May 8, 1992).

14. Barker v. Wingo, 407 U.S. 514, 530 (1972); State v. Williams, 143 Vt. 396, 401 (1983); State v. Unwin, 139 Vt. 186, 195 (1980).

15. A.O. 5 §§ 2, 3. See § ___, infra..

16. State v. Lavalette, 154 Vt. 426, 430 (1990); State v. Trombley, 148 Vt. 293, 299 (1987); State v. Angelucci, 137 Vt. 272, 277 (1979). See also State v. Sorrell, 152 Vt. 543, 545 (1989) (delay of less than 90 days not an A.O. 5 violation "and a fortiori no constitutional violation").

17. State v. Sorrell, 152 Vt. 543, 545 (1989); State v. Snide, 144 Vt. 436, 443-44 (1984).

18. State v. Sorrell, 152 Vt. 543, 545 (1989). Compare State v. Williams, 143 Vt. 396, 402 (1983) (delay caused by defendant's hospitalization either not counted or discounted).

19. State v. French, 152 Vt. 72, 77 (1989); State v. Roy, 151 Vt. 17, 36 (1989); State v. Unwin, 139 Vt. 186, 195 (1980).

20. State v. Lavalette, 154 Vt. 426, 429 (1990).

21. United States v. MacDonald, 456 U.S. 1, 6-7 (1982); United States v. Marion, 404 U.S. 307, 320 (1971) (formal accusation or arrest). The right does not attach when an arrest warrant has been issued but no other action is taken. State v. Ellis, 149 Vt. 264, 267 (1988). In State v. Snide, 144 Vt. 436, 442-43 (1984), the court assumed that the speedy trial clock starts when the defendant is cited.

22. State v. Dean, 148 Vt. 510, 513 (1987).

23. A.O. 5 § 4. See § ___, infra.

24. State v. Williams, 143 Vt. 396, 401 (1983). But see State v. Keith, No. 91-582, slip op. 12 (Vt. May 21, 1993) (unnecessary to consider reasons for delay in calculating length).

25. State v. Trombley, 148 Vt. 293, 299 (1987); State v. Williams, 143 Vt. 396, 401 (1983); State v. Bristol, 143 Vt. 245, 249 (1983).

26. State v. Yudichak, 151 Vt. 400, 405 (1989); State v. Messier, 146 Vt. 145, 162 (1985); State v. Williams, 143 Vt. 396, 401 (1983); State v. Bristol, 143 Vt. 245, 249 (1983).

27. State v. Lavalette, 154 Vt. 426, 429 (1990); State v. Trombley, 148 Vt. 293, 299 (1987).

28. See, e.g., State v. French, 152 Vt. 72, 76 (1989).

29. 136 Vt. 569 (1978).

30. 152 Vt. 72, 76-77 (1989).

31. State v. French, 152 Vt. 72, 76 (1989).

32. United States v. MacDonald, 456 U.S. 1, 8 (1982); State v. Snide, 144 Vt. 426, 443 (1984). The court in Snide did not decide if the first period of delay (from the initial filing to the dismissal) should be counted at all. 144 Vt. at 443.

33. Barker v. Wingo, 407 U.S. 514, 529 (1972); State v. Roy, 140 Vt. 219, 228 (1981).

34. Barker v. Wingo, 407 U.S. 514, 531 (1972); State v. Unwin, 139 Vt. 186, 196 (1980).

35. State v. Unwin, 139 Vt. 186, 196 (1980) (quoting Barker v. Wingo, 407 U.S. 514, 531 (1972)). See also State v. Venman, 151 Vt. 561, 576 (1989); State v. Roy, 151 Vt. 17, 36 (1989). Compare Doggett v. United States, 112 S. Ct. 2686, 2691 (1992) (government's "lethargy" in pursuing an indicted suspect counts againt the prosecution).

36. State v. Yudichak, 151 Vt. 400, 407 (1989) (citing United States v. Loud Hawk, 474 U.S. 302, 313 (1986)).

37. State v. Williams, 143 Vt. 396, 402 (1983).

38. Doggett v. United States, 112 S. Ct. 2686, 2691 (1992) (no one told indicted defendant that police were looking for him).

39. State v. Unwin, 139 Vt. 186, 196 (1980). See also State v. Venman, 151 Vt. 561, 576 (1989); State v. Recor, 150 Vt. 40, 43 (1988) (several motions to dismiss); State v. Williams, 143 Vt. 396, 406 (1983).

40. State v. Unwin, 139 Vt. 186, 196 (1980).

41. State v. Roy, 151 Vt. 17, 37 (1989) (defendant did not raise issue until over five months after arraignment); State v. Recor, 150 Vt. 40, 43 (1988) (demand made 12 months after charges brought).

42. Barker v. Wingo, 407 U.S. 514, 525-28 (1972), specifically rejected a rule which would presume waiver of a speedy trial claim for any period of delay prior to a defendant's first demand for a speedy trial.

43. State v. Keith, No. 91-582, slip op. 14 (Vt. May 21, 1993). See also State v. Williams, 143 Vt. 396, 406 (1983); State v. Unwin, 139 Vt. 186, 197 (1980).

44. Barker v. Wingo, 407 U.S. 514, 532 (1972). See State v. Yudichak, 151 Vt. 400, 405 (1989); State v. Roy, 151 Vt. 17, 37 (1989).

45. State v. Recor, 150 Vt. 40, 42 (1988); State v. Unwin, 139 Vt. 186, 197 (1980) (citing Barker v. Wingo, 407 U.S. 514, 532 (1972)).

46. State v. Unwin, 139 Vt. 186, 197 (1980).

47. In State v. Yudichak, 151 Vt. 400, 406 (1989), the court rejected a claim of prejudice based on the death of one witness and faulty memories of two others, where it was "not evident that the witnesses would have testified to the facts allegedly forgotten or even that the witnesses, had they remembered details desired by the defendant, would have strengthened the defense."

48. State v. Venman, 151 Vt. 561, 575 (1989); State v. Bristol, 143 Vt. 245, 249 (1983).

49. Barker v. Wingo, 407 U.S. 514, 537 (1972) (concurring opinion) (quoting United States v. Marion, 404 U.S. 307, 320 (1971)). "[T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense." Id. at 538 (quoting Marion at 320).

50. 456 U.S. 1 (1982).

51. United States v. MacDonald, 456 U.S. 1, 8-9 (1982). See also United States v. Loud Hawk, 474 U.S. 302, 312 (1986).

52. 112 S. Ct. 2686 (1992).

53. Doggett v. United States, 60 L.W. 4741, 4743 (1992) (footnote omitted).

54. State v. Roy, 151 Vt. 17, 37 (1989).

55. State v. Recor, 150 Vt. 40, 42 (1988) (quoting State v. Bristol, 143 Vt. 245, 249 (1983)).

56. State v. Yudichak, 151 Vt. 400, 406 (1989).

57. State v. Venman, 151 Vt. 561, 575 (1989).

58. 112 S. Ct. 2686, 2692-94 (1992).

59. See 18 U.S.C. §§ 3161 et seq.; 2 ABA Criminal Justice Standards § 12-2.1 and Commentary.

60. The supreme court's administrative orders are published in the volume of the Vermont Statutes Annotated containing the probate rules.

61. State v. Venman, 151 Vt. 561, 574 (1989); State v. Snide, 144 Vt. 436, 441 (1984); State v. Angelucci, 137 Vt. 272, 277 (1979); State v. Chamberlin, 131 Vt. 549, 550-51 (1973).

62. State v. Snide, 144 Vt. 436, 441 (1984); State v. Unwin, 139 Vt. 186, 195 (1980).

63. A.O. 5 § 2.

64. A.O. 5 § 3. V.R.Cr.P. 48(b)(1) also permits, but does not require, dismissal for violations of A.O. 5.

65. Excluded from the six-month and 90-day time periods are delays occasioned by "proceedings for determination of the competency of the accused to stand trial, periods during which it is found the defendant is incompetent to stand trial, pretrial motions, interlocutory appeals, trial of other charges against the accused and the period during which such matters are under consideration by the courts"; "[d]elays resulting from a continuance granted by the trial court at the request of, or with the consent of the defendant[,]" which should be granted only for good cause; "[d]elay resulting from a continuance granted at the request of the prosecuting attorney" on grounds that evidence is unavailable or the case is exceptionally complicated; "[d]elay resulting from the absence of the defendant"; and delays "caused by extraordinary circumstances." A.O. 5 § 4.

66. A.O. 5 § 1.

67. A.O. 5 § 5.

68. State v. Snide, 144 Vt. 436, 440 (1984).

69. Rule 48(b)(2) permits a judge to dismiss charges if the judge concludes that dismissal will serve "the ends of justice and the effective administration of the court's business." See chapter 11, supra.

70. State v. Snide, 144 Vt. 436, 440 (1984) (quoting the Federal Advisory Committee Note to F.R.Cr.P. 48, 48 F.R.D. 553, 640-41).

71. State v. Snide, 144 Vt. 436, 440 (1984).

72. State v. Jones, 157 Vt. 553, 556-57 (1991); V.R.Cr.P. 48(b), Reporter's Notes to the 1989 Amendment.

73. It may do so even when the state, after losing a motion for a continuance, nol prosses the case. State v. Jones, 157 Vt. 553, 557-59 (1991).

74. State v. Jones, 157 Vt. 553, 559-60 (1991).

75. State v. Dean, 148 Vt. 510, 513 (1987). V.R.Cr.P. 32(a)(1) also requires that sentence be imposed "without unnecessary delay."

76. State v. Dean, 148 Vt. 510, 514 (1987) (sentence reconsideration); State v. Hall, 145 Vt. 299, 307 (1984) (appeal).

77. United States v. Lovasco, 431 U.S. 783, 789-90 (1977); United States v. Marion, 404 U.S. 307, 324 (1971); State v. Ellis, 149 Vt. 264, 267 (1988).

78. State v. Ellis, 149 Vt. 264, 267-68 (1988).

79. Some of these proceedings are controlled by statutory time limits.

80. State v. Dean, 148 Vt. 510, 514 (1987); State v. Hall, 145 Vt. 299, 307 (1984).

81. State v. Ellis, 149 Vt. 264, 268 (1988). In State v. Hall, 145 Vt. 299, 307 (1984), the court held that a defendant claiming delay in processing his appeal must show that the delay made it impossible to present an adequate appeal or prejudiced his defense on a retrial. In State v. Dean, 148 Vt. 510, 514 (1987), and State v. Ellis, 149 Vt. 264, 268 (1988), the court found an insufficient showing of prejudice.

82. State v. Ellis, 149 Vt. 264, 268 (1988) (citing United States v. Marion, 404 U.S. 307, 324 (1971)).

83. Vt. Const. ch. I, art. 4.

84. Vt. Const. ch. II, art. 28.

85. State v. Dean, 148 Vt. 510, 515 (1987) (citing State ex rel. McLellan v. Cavanaugh, 498 A.2d 735, 739 (N.H. 1985)). The court in Dean nevertheless found Cavanaugh inapplicable to sentence reconsideration delays.