Cupples v. State

James CUPPLES v. STATE of Arkansas

CR 96-339                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Criminal procedure -- speedy trial -- shifting burden. --
     Where appellant was tried on a date twenty-six days beyond the
     twelve-month constraint of A.R.Cr.P. Rule 28.1, he established
     a prima facie case that a speedy-trial violation occurred, and
     the burden shifted to the State to show that the delay was the
     result of appellant's conduct or was otherwise legally
     justified.

2.   Criminal procedure -- speedy trial -- docket error --
     defendant's burden to bring matter to trial court's attention.
     -- If a defendant discovers a docket error that affects his
     speedy-trial rights, or if a defendant takes exception to the
     wording of an order, it is his burden to bring the matter to
     the trial court's attention or to affirmatively request trial.

3.   Criminal procedure -- speedy trial -- docket error --
     appellant did not timely call objection to trial court's
     attention. -- Where the trial court's letter and the
     corresponding docket entry of November 7, 1994, stated that
     the trial date was reset for December 20, 1994, at appellant's
     request, the supreme court concluded that, having waited until
     after his speedy-trial time had expired, appellant did not
     timely call his objection to the trial court's attention;
     accordingly, the supreme court held that the period from
     November 7, 1994, to December 20, 1994, constituted an
     excludable period.

4.   Criminal procedure -- speedy trial -- appellant was timely
     tried. -- Because the period from November 7, 1994, to
     December 20, 1994, was excludable from the twelve-month period
     ending May 24, 1995, the supreme court concluded that
     appellant was timely tried on June 19, 1995, and that the
     trial court did not err in denying the motion to dismiss; the
     judgment of conviction was affirmed.


     Appeal from Arkansas Circuit Court, Southern District; Russell
Rogers, Judge; affirmed.
     Dennis R. Molock, Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Donald L. Corbin, Justice.
     Appellant, James Cupples, appeals the order of the Arkansas
County Circuit Court convicting him of two counts of rape and one
count of sexual abuse.  Appellant was tried by the court and
sentenced to consecutive prison terms, respectively, of thirty-
three years, thirty-three years, and four and one-half years. 
Jurisdiction of this appeal is properly in this court pursuant to
Ark. Sup. Ct. R. 1-2(a)(2).  Appellant's sole point for reversal of
the judgment concerns the denial of his motion to dismiss based on
an alleged violation of his right to a speedy trial.  We find no
merit and affirm.
     It is not disputed that charges were filed against Appellant
on May 24, 1994, and that according to A.R.Cr.P. Rule 28.1(a), he
should have been tried within twelve months "excluding only such
periods of necessary delay as are authorized in Rule 28.3."  The
dispute is over excludable periods.  Appellant was tried on
June 19, 1995, which is twenty-six days beyond the twelve-month
constraint of Rule 28.1.  Thus, Appellant established a prima facie
case that a speedy-trial violation occurred, and the burden shifted
to the State to show that the delay was the result of Appellant's
conduct or otherwise legally justified.  Jones v. State, 323 Ark.
655, 916 S.W.2d 736 (1996).
      The trial court ruled that there were any number of
excludable periods including Appellant's delay in hiring counsel,
his filing of a motion to suppress evidence, and his waiver and
then withdrawal of his right to a jury trial.  On appeal, the State
contends any one of these three delays is sufficient alone to
constitute an excludable period.  
     The State contends that Appellant's withdrawal of his waiver
of the right to a jury trial resulted in an excludable period under
either Rule 28.3(a) as a "period of delay resulting from other
proceedings concerning the defendant," or Rule 28.3(c) as a "period
of delay resulting from a continuance granted at the request of the
defendant or his counsel."  The docket contains numerous entries
concerning Appellant's waiver of jury-trial right.  These entries 
indicate the case was first set for jury trial, then nonjury trial,
then jury trial, and then nonjury trial.  These entries are without
explanation.  Because these docket entries do not expressly state
that Appellant ever reasserted his right to be tried by a jury, he
contends any time relating to this issue should not be charged
against him.  The State responds by relying on a letter from the
trial court to Appellant's counsel, which was filed on November 7,
1994, resetting the case for jury trial at the defendant's request
for December 20, 1994.  The law is well-established that if a
defendant discovers a docket error that affects his speedy-trial
rights, or if a defendant takes exception to the wording of an
order, it is his burden to bring the matter to the trial court's
attention or to affirmatively request trial.  E.g., Clements v.
State, 312 Ark. 528, 851 S.W.2d 422 (1993); Anderson v. Hargraves,
272 Ark. 259, 613 S.W.2d 587 (1981).  
     In this case, not only does the trial court's letter, which
was filed of record, state that the trial date was reset at
Appellant's request, but the corresponding docket entry of
November 7, 1994, also states that the jury-trial date was reset
for December 20, 1994, at Appellant's request.  The record in this
case does not reveal that Appellant objected to either the docket
entry or the letter.  Thus, consistent with Clements and Anderson,
we conclude that, having waited until after his speedy-trial time
has expired, Appellant did not timely call his objection to the
trial court's attention.  Accordingly, the period from November 7,
1994, to December 20, 1994, constitutes an excludable period.
     Because the period from November 7, 1994, to December 20,
1994, is excludable from the twelve-month period ending May 24,
1995, we conclude Appellant was timely tried on June 19, 1995, and
that the trial court did not err in denying the motion to dismiss. 
Accordingly, we need not address the remaining arguments concerning
Appellant's delay in hiring counsel and the filing of the motion to
suppress.  
     The judgment of conviction is affirmed.