Christopher Branning v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR07415
CHRISTOPHER BRANNING,
APPELLANT,
Opinion Delivered November 8, 2007
APPEAL FROM THE BOONE COUNTY
CIRCUIT COURT,
NO. CR20042444,
HON. GORDON WEBB, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
CIRCUIT COURT AFFIRMED; COURT
OF APPEALS REVERSED.
JIM HANNAH, Chief Justice
Appellant Christopher Branning was convicted of seconddegree stalking, two counts
of firstdegree terroristic threatening, and misdemeanor violation of a protection order, for
which he was sentenced to concurrent terms of 120 months, 72 months, 72 months, and 259
days, respectively, in the Arkansas Department of Correction. On appeal, Branning argues
that the circuit court erred in denying his motion to dismiss based on doublejeopardy
grounds and his motion to dismiss based on speedytrial grounds. In an unpublished opinion,
the court of appeals reversed and dismissed Branning’s convictions for seconddegree
stalking and the first count of terroristic threatening based on doublejeopardy grounds;
Branning’s speedytrial argument was not addressed. Branning v. State, CACR 05989 (Ark.
App. Apr. 4, 2007). The State petitioned this court for review, contending that the decision
of the court of appeals is in conflict with prior case law, and is therefore in error. We
granted the State’s petition for review pursuant to Ark. Sup. Ct. R. 12(e). When we grant
review following a decision by the court of appeals, we review the case as though the appeal
was originally filed with this court. See, e.g., Porter v. State, 356 Ark. 17, 145 S.W.3d 376
(2004). We affirm the circuit court and reverse the court of appeals.
Branning was arrested on December 3, 2003, and charged in Harrison District Court
with four misdemeanors: harassing communications, terroristic threatening, carrying a
weapon, and seconddegree assault. Pursuant to an agreement with the State, Branning pled
guilty on May 5, 2004, to carrying a weapon and seconddegree assault. Branning was
placed on a suspended sentence, and the State nol prossed the charges for harassing
communications and terroristic threatening.
On January 27, 2005, in circuit court, the State charged Branning by amended
information with six felony offenses:
(1)
Stalking in the second degree, based on a course of conduct occurring
between December 3, 2003, and June 7, 2004;
(2)
Terroristic Threatening in the First Degree, Count One, based on
conduct occurring December 3, 2003;
(3)
Criminal Mischief in the First Degree, based on conduct occurring
February 15, 2004;
(4)
Criminal Trespass, based on conduct occurring May 1, 2004;
(5)
Terroristic Threatening in the First Degree, Count Two, based on
conduct occurring May 15, 2004; and
(6)
Violation of an Order of Protection, based on conduct occurring June
7, 2004.
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Branning filed motions to dismiss based on doublejeopardy grounds and speedytrial
grounds. The circuit court denied both motions, concluding that double jeopardy was not
implicated, given that the amended information did not reassert any charges underlying
Branning’s district court convictions for carrying a weapon and seconddegree assault. The
circuit court also concluded that, “because the charges of harassing communications and
terroristic threatening were nol prossed, a procedure that allows for the refiling of those
charges, the State is entitled to proceed on those charges without being prevented from doing
so by the double jeopardy (former prosecution) provisions of the Arkansas Constitution and
the Arkansas Code Annotated § 51110—112.” Further, the circuit court concluded that,
while Branning was brought to trial more than one year after he was arrested, the State was
not barred from prosecuting him because the period of delay was excludable under the
speedytrial rule.
Branning now brings this appeal. Because Branning alleges a doublejeopardy
violation based on convictions for conduct occurring on December 3, 2003, the charges of
terroristic threatening, count two, and violation of an order of protection, both of which
occurred after December 3, 2003, are not at issue in this appeal. In addition, the firstdegree
criminal mischief and criminal trespass charges were severed and are not a part of this
appeal. Thus, we address Branning’s doublejeopardy argument only as it applies to his
charges for stalking in the second degree and terroristic threatening in the first degree, count
one.
When reviewing a denial of a motion to dismiss for violation of the Double Jeopardy
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Clause, typically, a question of law, a de novo review should be conducted. Winkle v. State,
366 Ark. 318, ___ S.W.3d ___ (2006) (citing United States v. Brekke, 97 F.3d 1043 (8th Cir.
(1996); Muhammad v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999)).
Branning first argues that the circuit court erred in denying his motion to dismiss
based on doublejeopardy grounds because he had already been charged and convicted of
misdemeanors arising out of the same occurrence. He states that the nol prossing of the two
charges was “obviously part of a plea agreement.” Accordingly, he argues that “he was
placed in jeopardy for all events occurring on December 3, 2003,” and that successful
prosecution of him in district court precluded him from being charged with the same acts at
some later date, “as the element in a multielement stalking charge.” He states that he was
charged twice in two courts for the same thing and was convicted both times. Thus, he
claims that the State is barred from prosecuting him in circuit court.
The State argues that it was not barred from prosecuting Branning in circuit court,
pursuant to this court’s holding in McKinney v. State, 215 Ark. 712, 223 S.W.2d 185 (1949).
We agree. In McKinney, we held that “the State’s dismissal of a case before the trial has
begun does not prevent a subsequent prosecution.” Id. at 713, 223 S.W.2d at 185 (citing
JUSTIN MILLER, MILLER ON CRIMINAL LAW § 186 (1934)). Here, the acts constituting the
stalking charge in circuit court were the basis of the harassingcommunications charge in
district court, and count one of the terroristicthreatening charge in circuit court was based
on the same conduct as the terroristicthreatening charge in district court. However, as we
previously noted, the harassingcommunications charge and terroristicthreatening charge in
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district court were nol prossed and constituted separate crimes, even though they arose from
the same criminal episode. Thus, Branning’s argument that “he was charged twice in two
courts for the same thing and was convicted both times” is simply without merit. A nolle
prosequi, or nol pros, is a dismissal of a prosecution without prejudice to refile. See Jones
v. State, 347 Ark. 455, 65 S.W.3d 402 (2002). See also Black’s Law Dictionary 1074 (8th
ed. 2004) (The Latin words translated into English mean “not to wish to prosecute”). The
State, having nol prossed the charges in district court, was free to bring a subsequent
prosecution. See McKinney, supra; see also Halton v. State, 224 Ark. 28, 271 S.W.2d 616
(1954) (stating that a dismissal of an indictment is not a bar to a future prosecution for the
same offense). We hold that the circuit court did not err in denying Branning’s motion to
dismiss on doublejeopardy grounds.
Branning next argues that the circuit court erred in denying his motion to dismiss the
case against him due to a violation of the speedytrial rules. We recently stated in Yarbrough
v. State, 370 Ark. 31, ___, ___ S.W.3d ___, ___ (2007):
Under Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant
must be brought to trial within twelve months unless there are periods of delay
that are excluded under Rule 28.3. Ark. R. Crim. P. 28.1(c) (2006); Gamble
v. State, 350 Ark. 168, 85 S.W.3d 520 (2002); Doby v. Jefferson County
Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002). If the defendant is not
brought to trial within the requisite time, the defendant is entitled to have the
charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1
(2006); Gamble v. State, supra; Doby v. Jefferson County Circuit Court,
supra. Once a defendant establishes a prima facie case of a speedytrial
violation, i.e., that his or her trial took place outside of the speedytrial period,
the State bears the burden of showing that the delay was the result of the
defendant’s conduct or was otherwise justified. Gamble v. State, supra; Doby
v. Jefferson County Circuit Court, supra.
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In the case before us, Branning was arrested on December 3, 2003. On February 1,
2005, Branning filed a motion to dismiss for violation of his speedytrial rights based on a
scheduled trial date of February 2, 2005. We have held that the filing of a speedytrial
motion tolls the running of the time for a speedy trial under our rules. Yarbrough, supra.
Here, the State concedes that Branning made a prima facie showing of a speedytrial
violation, and that the burden shifted to the State to show the delay was the result of the
defendant’s conduct or was otherwise justified.
On appeal, we conduct a de novo review to determine whether specific periods of
time are excludable under our speedytrial rules. Yarbrough, supra; Cherry v. State, 347
Ark. 606, 66 S.W.3d 605 (2002). There were 426 days between Branning’s arrest on
December 3, 2003, and February 1, 2005, the day his speedytrial motion was filed. The
district court docket sheet reflects that on May 5, 2004, the charges of harassing
communications and terroristic threatening, based on the conduct that occurred on December
3, 2003, were nol prossed by the State. The prosecutor filed a felony information in circuit
court on June 25, 2004. The period of delay due to the State’s nol prossing of charges for
good cause is excludable under the speedytrial rule. Ark. R. Crim. P. 28.3(f). Branning
does not contend that the State lacked good cause. The district court disposed of the four
charges in that court by taking two charges, harassing communications and terroristic
threatening, under advisement for one year, until May 4, 2005, conditioned upon, among
other things, no like charges being filed and by nol prossing the other two charges. The
period between the nol pros in district court and the filing of charges in circuit court—May
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5 to June 25, 2004—is 51 days.
At Branning’s request, the circuit court granted a continuance from November 5 to
December 3, 2004, a period of 28 days. Delays resulting from continuances given at the
request of the defendant are excluded in calculating the time for speedy trial. Ark. R. Crim.
P. 28.3(c); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).
Subtracting the nol pros and continuance periods (51 and 28 days, respectively) from
the overall 426day period leaves 347 days, well within the oneyear period of the speedy
trial rule. Thus, the circuit court did not err in denying Branning’s motion to dismiss on
speedytrial grounds.
Affirmed.
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