¶2Burglary, second degree; sentence: four years' imprisonment.
¶3The sole issue presented for review is whether the appellant was denied a speedy trial in violation of the sixth amendment to the United States Constitution and article I, § 6, of the 1901 Alabama Constitution. We hold that the seven-year delay between appellant's arrest and trial did deprive him of his right to a speedy trial.
¶4The following timetable chronicles the facts of the case pertinent to this issue: *586
¶5November 25, 1973 — Defendant was apprehended and arrested by a Collinsville policeman at the burglarized National Guard Armory in Collinsville.
¶6November 28, 1973 — Defendant posted bond. Defendant's future attorney signed bond as surety.
¶7December 20, 1973 — Defendant retained Lee Clyde Traylor as his attorney.
¶8January 17, 1974 — Defendant indicted.
¶9February 5, 1974 — Defendant's attorney filed a motion to be released from bond. Motion indicated that defendant was incarcerated in the Hamilton County jail in Chattanooga, Tennessee, and a hold had been placed on defendant by DeKalb County authorities at attorney's request.
¶10June 24, 1974 — Defendant's attorney filed a motion to be released from bond. Motion reflected that defendant was being held at the Davidson County jail in Nashville, Tennessee. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
¶11September 5, 1974 — Defendant's attorney filed a motion to be released from bond. Motion stated that defendant was imprisoned at the Fulton County jail in Atlanta, Georgia. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
¶12September 13, 1974 — Letter from Fulton County, Georgia, sheriff's office to DeKalb County sheriff stating that defendant had been held in custody at the Fulton County jail since July 11, 1974, and that Hamilton County, Tennessee, had placed a hold on defendant. However, letter noted that Tennessee had not initiated any extradition proceedings as of this date.
¶13September 24, 1974 — The "Motion to be Released from Bond" of defendant's attorney was denied since "to grant the Motion would work an undue hardship upon the State of Alabama, or it might be reasonably anticipated that an undue hardship would be worked upon the State of Alabama in bringing the defendant back to this jurisdiction." October 11, 1974 — Defendant filed a motion for a speedy trial. Motion stated that defendant was incarcerated at the Fulton County jail in Atlanta, Georgia, on this date.
¶14December 12, 1974 — Defendant's attorney requested and was granted a continuance due to family illness.
¶15January 27, 1975 — Teletype message from Fulton County, Georgia, authorities informing the sheriff of DeKalb County that there would be no extradition hearing to Alabama or Kentucky because defendant had appealed his extradition to Tennessee. Message also said that defendant "indicated that he is not intending to waive extradition to any state."
¶16September 19, 1977 — Defendant's case set for trial. Bench note reflected that defendant was in a Kentucky penitentiary.
¶17August 10, 1978 — Arraignment was scheduled, but bench note reflected that defendant failed to appear "due to his incarceration elsewhere."
¶18May 16, 1979 — Defendant filed second motion for a speedy trial. Motion indicated that he was currently confined but did not specify where.
¶19June 28, 1979 — Defendant's case set for trial, but was not reached and was continued.
¶20September 12, 1979 — Case set for trial. Defendant failed to appear.
¶21October 4, 1979 — Forfeiture entered against defendant and his bond.
¶22March 3, 1980 — Case set for trial. Defendant failed to appear.
¶23March 10, 1980 — Forfeiture entered against defendant and his bond.
¶24November 24, 1980 — Defendant arrested pursuant to Alabama alias warrants. Defendant waived extradition from Fulton County, Georgia.
¶25November 27, 1980 — Defendant committed to DeKalb County jail.
¶26January 29, 1981 — Defendant filed motion to dismiss for lack of a speedy trial.
¶27February 10, 1981 — Motion denied. *587
¶28February 12, 1981 — Defendant arraigned, tried and convicted of burglary in the second degree.
¶29March 5, 1981 — Defendant sentenced to four years in the penitentiary.
¶30March 10, 1981 — Defendant filed a motion for a new trial alleging, inter alia, violation of his right to a speedy trial.
¶31Four factors must be considered when determining whether a criminal defendant has been denied his right to a speedy trial; namely, (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his rights, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182,33 L.Ed.2d 101 (1972). These factors are the basis for the ad hoc balancing process that we must employ in which the conduct of the prosecution and that of the defendant are weighed. Johnsonv. State, 356 So.2d 769 (Ala.Cr.App. 1978).
¶34The record reveals no such attempts of this nature by DeKalb County officials. At the hearing on the motion to dismiss, these officials testified that, although they telephoned prison officials in other states, they were unable to locate the appellant during the seven-year period. They did not offer any proof that detainers had been placed on appellant during this time. Instead, appellant's attorney in his motions to be released from his capacity as surety on appellant's bond averred that he had DeKalb County authorities place detainers on the appellant in Georgia and Tennessee. However, DeKalb County officials offered no corroboration that the holds were ever placed by them or received by Georgia and Tennessee.
¶35DeKalb County authorities could not merely wait to take action until the accused was "available" to Alabama once he demanded his return for trial. Ex parte Slaughter,377 So.2d 632 (Ala.), on remand, 377 So.2d 634 (Ala.Cr.App. 1979). We realize that appellant's various incarcerations in Georgia, Tennessee and Kentucky during *588 these seven years made it inconvenient for DeKalb County officials to ascertain his whereabouts, but it did not eradicate their duty to exert an affirmative effort to bring him back to Alabama for trial.
¶36It was not until January 27, 1975, that DeKalb County received a Georgia teletype which stated that appellant would not waive extradition to any state. At any rate, the State did not offer to prove that Alabama had ever attempted to extradite the appellant from Georgia. A mere supposition that the appellant would refuse to waive extradition mentioned in the Georgia teletype should not be weighed against him. The possibility that another jurisdiction may refuse to cooperate is not the equivalent of asking and receiving a rebuff. Smithv. Hooey, supra.
¶37Appellant filed two more requests for a speedy trial during these seven years. It therefore appears that the reason for the delay in this case was due to the inaction and negligence of Alabama prosecuting officials. While we must weigh this bureaucratic inertia less heavily than deliberate prosecutorial delay, Barker and Corn, supra, we nevertheless find that this was the major cause for the seven-year delay.
¶38Since the first three Barker factors coalesce in appellant's favor, we need not weigh the prejudice suffered by the appellant in our balancing test. Prince v. Alabama, supra. However, we note that appellant was over seventy years old when the case was finally tried, at least three witnesses had died in the interim, and some of the physical evidence could not be found. We conclude that the appellant was unconstitutionally denied his right to a speedy trial, and pursuant to Strunk v.United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), his motion to dismiss based upon this premise should have been granted.
¶39REVERSED AND RENDERED.
¶40All the Judges concur.