Lively v. State

David LIVELY v. STATE of Arkansas

CR 96-438                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Trial -- speedy-trial rule -- prima facie case of violation
     established -- burden shifted to State. -- Under A.R.Cr.P.
     Rules 28.1(b) and 28.2(b), a defendant charged with an offense
     and incarcerated pursuant to a conviction for another offense
     shall be entitled to have the charge dismissed if not brought
     to trial within twelve months from the time the charge is
     filed or the time of arrest, whichever occurs first; where
     twenty-six months passed from the date on which the
     information was filed until the date on which petitioner filed
     his motion to dismiss, petitioner presented a prima facie case
     that the speedy-trial rule was violated; the burden then
     shifted to the State to explain the delay.

2.   Trial -- speedy-trial violation -- State offered no proof that
     sheriff attempted to serve arrest warrant -- writ of
     prohibition granted. -- Where the State offered no proof that
     the sheriff attempted to serve petitioner with the arrest
     warrant on hot-check charges, the supreme court granted a writ
     of prohibition.


     Appeal from Faulkner Circuit Court; David L. Reynolds, Judge;
Petition for Writ of Prohibition granted.
     Petitioner, pro se.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for respondent.

     Per Curiam.    
     The petitioner, David Lively, has filed a pro se petition for
a writ of prohibition to prevent a trial on felony hot-check
charges that were filed in Faulkner County Circuit Court on April
26, 1993.  Twenty-six months after the filing of the information,
on July 10, 1995, Lively moved to dismiss the charges on speedy-
trial grounds.  After no action was taken on his motion, Lively
petitioned this court for a writ of mandamus.  The petition became
moot when the Trial Court denied the motion to dismiss in an order
that was entered on February 28, 1996.  Lively v. Hon. David
Reynolds, Judge, CR96-22 (March 11, 1996).  We find that the State
has not met its burden of proof to explain its failure to bring
Lively to trial within twelve months of the date the charges were
filed, as required by A.R.Cr.P. Rule 28.1, and we grant the writ.
     At the time the information was filed, Lively was incarcerated
pursuant to a first-degree battery conviction in Pulaski County. 
A docket entry shows that on the date of the filing of the
information, an arrest warrant was issued.  The warrant was
apparently never served, and there is no indication that anything
further was done to bring Lively to trial.  The Trial Court's order
denying Lively's motion to dismiss consists of the following two
sentences:  "On this day comes the matter of the request of the
Defendant, David Lively, for Motion to Dismiss the above-styled
cause.  The Court finds that the warrant in this case has not been
served and the petition is without merit and is hereby denied."   
     A defendant charged with an offense and incarcerated pursuant
to a conviction for another offense shall be entitled to have the
charge dismissed if not brought to trial within twelve months from
the time the charge is filed or the time of arrest, whichever
occurs first. Ark. R. Crim. P. 28.1(b) and 28.2(b).  Since twenty-
six months passed from the date the information was filed until the
date Lively filed his motion to dismiss, he presented a prima facie
case that the speedy-trial rule was violated.  The burden then
shifted to the State to explain the delay.  Duncan v. Wright, 318
Ark. 153, 883 S.W.2d 834 (1994).
     There is no indication in the record that there was a hearing
on the motion to dismiss, nor is there any indication that the
State filed a responsive pleading in the Trial Court.  The only
explanation for the delay appears in the State's response to this
petition, where it argues that the twenty-six month period is
excludable pursuant to A.R.Cr.P. Rule 28.3(e), which provides in
pertinent part:

     The following periods shall be excluded in computing the time
     for trial:

     (e)  The period of delay resulting from the absence or
     unavailability of the defendant.  A defendant shall be
     considered absent when his whereabouts are unknown....  

According to the State, Lively's whereabouts were unknown because
there is no way the Faulkner County Prosecutor could have known
that Lively was serving time in a state prison on charges that
originated in Pulaski County.  In his reply brief, Lively argues
that the period is not excludable because there is no proof that
there was an attempt to serve the warrant.  We agree.
     In Duncan v. Wright, supra, the State argued that the period
of delay in bringing Duncan to trial on hot-check charges was
excludable under Rule 28.3(e).  The State contended that Duncan's
whereabouts could not be ascertained because he used an alias, but
did not offer any proof that the Sheriff attempted to serve the
arrest warrant.  We identified the lack of any proof of an attempt
to arrest as the threshold issue in the case.  We found it 
illogical that Duncan's alias thwarted an arrest that was never
attempted.  Accordingly, we granted the writ of prohibition.
     Duncan v. Wright is controlling in this case.  The State has
not offered any proof that the Sheriff attempted to serve the
arrest warrant on the hot-check charges.    
     The writ of prohibition is granted.