Whittle v. Washington County Circuit Court

Bradford 
Allen WHITTLE v. WASHINGTON COUNTY CIRCUIT
COURT

CR 96-189                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Appeal & error -- municipal judgment appealed to circuit court
     -- trial de novo results. --  An appeal to a circuit court of
     a municipal court judgment results in a trial de novo.  

2.   Criminal procedure -- municipal court speedy trial violation
     may be raised in circuit court -- speedy trial rule refers
     only to circuit court. -- A municipal court speedy trial
     violation may be raised in the circuit court proceeding
     although A.R.Cr.P.Rule 28.1, which now sets the speedy trial
     limit at one year, only refers to trial in a circuit court.

3.   Criminal procedure -- appeal of municipal court judgment to
     circuit court -- when circuit court proceeding does not
     violate speedy trial rule. -- A circuit court proceeding does
     not violate the speedy trial rule, although it occurs outside
     the time limit set by the rules, if the municipal court trial
     being appealed was timely; in such a situation the time for
     the trial in the circuit court begins to run when the appeal
     from the municipal court conviction is filed. 

4.   Criminal procedure -- previous decision upheld -- no new
     reasons given for overruling. -- The State's request that the
     court overrule Stephens v. State, 295 Ark. 541, 750 S.W.2d 52
     (1988) on the grounds that Rule 28.1 states it applies to
     circuit court trials and does not refer to municipal court
     trials was declined by the supreme court where the respondent
     gave no more reason to decline to apply the speedy trial rule
     here than had been given in the Stephens case; Rule 1.2. of
     the Arkansas Rules of Criminal Procedure states that the rules
     govern the proceedings in all criminal cases in the Supreme
     Court and in circuit courts of the State of Arkansas, and
     shall also apply in all other courts where their application
     is practicable or constitutionally required.


     Petition for Writ of Prohibition; granted.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     David Newbern, Justice. 
ASSOCIATE JUSTICE DAVID NEWBERN   6/24/96   *ADVREP*SC6*  

                                   CR96-189
BRADFORD ALLEN WHITTLE             Opinion delivered:

                 Petitioner        Petition for Writ of         
                                   Prohibition
           v.

WASHINGTON COUNTY CIRCUIT
COURT             

                 Respondent        Petition Granted






     
     Bradford Allen Whittle seeks a writ of prohibition to prevent
the Washington County Circuit Court from trying him on charges of
misdemeanor offenses which were brought against him in 1991.  We
grant the writ because Mr. Whittle has been denied a speedy trial.
     Mr. Whittle stole a truck on August 12, 1991.  A subsequent
high-speed chase resulted in a collision with a police car.  He
pleaded guilty to a felony charge of theft of the truck and to two
other unrelated charges and was convicted and sentenced to eight
years imprisonment on September 9, 1991.  He was incarcerated and
failed to appear on October 25, 1991, in the Springdale Municipal
Court for trial on misdemeanor traffic charges stemming from the
incident.
     On April 1, 1994, a warrant for Mr. Whittle's arrest was
issued by the Municipal Court.  He was released from prison on
April 28, 1995, and shortly thereafter moved to dismiss the
misdemeanor charges pursuant to Ark. R. Crim. P. 30.1(a) because he
had not been given a speedy trial.  The motion was overruled, and
Mr. Whittle was convicted of the misdemeanor charges on August 18,
1995.  
     Mr. Whittle appealed to the Washington County Circuit Court. 
An appeal to a circuit court of a municipal court judgment results
in a trial de novo.  Bussey v. State, 315 Ark. 292, 867 S.W.2d 433
(1993).  Mr. Whittle again moved to dismiss for failure to provide
a speedy trial, claiming violations of the Sixth and Fourteenth
Amendments, Ark. Const. art.2,  10, and Ark. R. Crim. P. 27-30.
The motion was denied.  
     In his petition and brief before this Court, Mr. Whittle
relies on our decision in Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988).  Ms. Stephens was charged with driving while
intoxicated on June 28, 1984.  She was tried and convicted in a
municipal court on January 23, 1986.  She appealed to a circuit
court where she moved to dismiss for lack of a speedy trial. 
Although there was no record of Ms. Stephens having moved to
dismiss on speedy trial grounds in the municipal court, we held
that did not pose an impediment to raising the issue in circuit
court because the proceeding was de novo.  Our holding was that a
municipal court speedy trial violation may be raised in the circuit
court proceeding although Rule 28.1, which now sets the speedy
trial limit at one year, only refers to trial in a circuit court.
     In his letter opinion denying the motion to dismiss in the
case now before us, the Circuit Judge relied on Cook v. State, 321
Ark. 641, 906 S.W.2d 681 (1995), and McBride v. State, 297 Ark.
410, 762 S.W.2d 785 (1989).  In the McBride case we held that a
circuit court proceeding does not violate the speedy trial rule,
although it occurs outside the time limit set by the rules, if the
municipal court trial being appealed was timely.  We said in that
situation the time for the trial in the circuit court begins to run
when the appeal from the municipal court conviction is filed.  We
followed that decision when presented with similar facts in the
Cook case.
     In its response to Mr. Whittle's petition for prohibition and
in its brief the State acknowledges that the case now before us is
like the Stephens case in that, if Rule 28.1 applies, the municipal
court trial was held after the time prescribed by the rule had
expired.  It is unlike the McBride  and Cook cases in which the
municipal court trials were not in violation of the rule.
     The State asks that we overrule the Stephens decision on one
of the grounds stated by the dissenting opinion in that case, i.e.,
that Rule 28.1 states it applies to circuit court trials and does
not refer to municipal court trials.
     Rule 1.2. of the Arkansas Rules of Criminal Procedure states:

          These rules shall govern the proceedings in all criminal
     cases in the Supreme Court and in circuit courts of the State
     of Arkansas.  They shall also apply in all other courts where
     their application is practicable or constitutionally required.

The primary discussion in the opinion in the Stephens case was of
the constitutional right to a speedy trial.  We cited Barker v.
Wingo, 407 U.S. 514 (1972), and applied a "balancing test" of
factors leading to a decision that a violation of the Sixth
Amendment right to a speedy trial had occurred.  Upon concluding
that a violation had occurred, we then said, "Rule 28 would
likewise require a similar result."  We have been given no more
reason to decline to apply our speedy trial rule in this case than
we had in the Stephens case, and we decline to overrule that
decision.
     Writ granted.
     Dudley, J., not participating.
     Glaze, J., dissents.