A four-year-old theft charge against Morningland cult attorney Edward Masry must be thrown out because he was denied a speedy trial, a state appellate court ruled yesterday.

The 4th District Court of Appeal ordered Superior Court Judge F.V. Lopardo to dismiss the charge, which alleges that Masry took $10,000 from the religious cult, then based in Escondido.

The theft charge was the final criminal count remaining against the flamboyant attorney, who was indicted in 1980 for an alleged scheme to bribe then-Lt. Gov. Mervyn Dymally into setting up a legislative committee to investigate state government harassment of religious cults.

Reached in Chicago where he was on legal business, an elated Masry said, “I’m very pleased — obviously.

“The nightmare for me is practically over, but the nightmare is just starting for Gov. Deukmejian.”

Masry was referring to a civil lawsuit filed in his behalf in Los Angeles Superior Court against the governor for allegedly abusing Masry’s civil rights while he was attorney general.

Masry said now that he no longer will be facing criminal charges, he will be allowed to proceed with questioning Deukmejian under oath during a deposition.

“I look forward to that event because I feel it is time the voters of California realize the transgressions the governor has committed,” said Masry, who vowed to make public Deukmejian’s deposition.

Masry added, “I’m sure he (Deukmejian) through his lackey — (Deputy Attorney General) John Gordnier will now try to do something to keep me in the criminal process.”

Gordnier, who now works for Attorney General John van de Kamp’s office in Sacramento and prosecuted Masry in Superior Court in Vista, said he had not seen a copy of yesterday’s appellate court decision. “I want to take a look at it to assess whether it (the theft charge) could be refiled,” he added.

Masry’s criminal defense attorney, Allan Sigel said flatly that an attempt by the prosecutor to refile “will do no good.” Sigel said the statute of limitations clearly will bar refiling of the theft charge in this case.

In a 1981 trial, Masry was found guilty of theft, but acquitted of soliciting a bribe. The trial judge dismissed an embezzlement charge. Earlier, a conspiracy to commit bribery charge was dismissed.

Masry won the right to a new trial on the theft charge because of juror misconduct.

In its unanimous opinion, the Court of Appeal said that once Masry withdrew his consent to further delay his retrial on the theft charge, the trial should have begun within 10 days of Dec. 5, 1983. On that date, Masry said he no longer would waive his right to a speedy trial and was ready to proceed.

Judge Lopardo rejected Masry’s motion for dismissal on speedy trial grounds later that month.

Initially, the Court of Appeal had refused to overrule Lopardo, but the California Supreme Court agreed to hear Masry’s appeal of Lopardo’s ruling and then transferred the case to the Court of Appeal.

“Whether (Masry) originally intended to delay the trial and waive his right to speedy trial is irrelevant when he in fact makes the demand for speedy trial by withdrawing his consent to further delay,” wrote Justice Edward Butler. Presiding Justice Gerald Brown and Justice Gordon Cologne concurred.

The appellate court said the prosecution, which told the Superior Court on Dec. 5 that it was not ready to go to trial and needed time to subpoena witnesses, had not adequately explained why it was “unable to assemble their needed witnesses within the 10-day period triggered by (Masry’s) refusal to consent to continuing delays.”

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