On October 11, 2002, Richard Fischer was arrested for driving under the influence and possessing less than one ounce of marijuana. On August 31, 2006, Fischer moved to dismiss the charges against him, asserting that the State’s failure to timely try him violated his constitutional right to a speedy trial. The trial court denied the motion to dismiss. For reasons that follow, we vacate the trial court’s order and remand. The record reveals that Fischer was arrested on October 11, 2002, and he was immediately released on bond. However, the State did not file an accusation until March 26, 2004. Shortly thereafter, in July 2004, the State transferred the case against Fischer to its “dead docket.” According to the order signed by the trial court, the transfer was needed because “the investigator in this case, Leon Millholland, is on active duty in Iraq.” In June 2006, the case was returned to the active docket because it “appeared that the investigator was back from Iraq.”
Upon discovering that the case had been placed on an active trial calendar, Fischer filed a plea in bar, seeking dismissal of the case based upon a violation of his constitutional right to a speedy trial. A hearing was held during which the attorney for the State reiterated that the case had been dead-docketed as a result of the investigating officer’s deployment to Iraq and that the officer had since returned. Fischer’s attorney, on the other hand, argued that the investigator’s absence should not have delayed the case since there were other officers present at the arrest and that other officers performed the intoxilyzer test and discovered the marijuana. Following the hearing, the trial court denied the motion. Although the trial court apparently found the four-year delay presumptively prejudicial, it found the state was justified in its delay. Fischer appeals this ruling.
