Criminal procedure -- Speedy trial; State failed to meet its burden to show delay was result of petitioner's conduct; trial court erred in denying appellant's motion to dismiss. [ASCII, WP5.1]

Terrence McCLUNG v. STATE of Arkansas

CACR 95-444                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                  Opinion delivered May 8, 1996


1.   Criminal procedure -- speedy trial -- appeal of misdemeanor
     conviction to circuit court begins to run on day appeal is
     perfected. -- The time period within which a defendant must be
     brought to trial upon appeal of a misdemeanor conviction to
     circuit court begins to run under Rule 28.2 on the day that
     the appeal is perfected.

2.   Criminal procedure -- speedy trial -- primary burden on court
     and prosecutor. -- The primary burden is on the court and
     prosecutor to assure that a case is brought to trial in a
     timely fashion; a defendant has no duty to bring himself to
     trial, and the time for trial commences running without demand
     by the defendant.

3.   Criminal procedure -- speedy trial -- State's burden to show
     delay was result of petitioner's conduct or otherwise legally
     justified. -- Once it has been shown that a trial is to be
     held after the speedy-trial period has expired, the State has
     the burden of showing that any delay was the result of the
     defendant's conduct or that it was otherwise legally
     justified.

4.   Criminal procedure -- speedy trial -- State failed to meet
     burden -- trial court erred in denying appellant's motion to
     dismiss. -- Where appellant's trial in circuit court was not
     held until some three years and seven months after he had
     perfected his appeal from municipal court, the burden was on
     the State to show that at least two years and seven months of
     the delay was excludable; the State failed to meet that
     burden, and the appellate court held that the trial court
     erred in denying appellant's motion to dismiss; the matter was
     reversed and dismissed.


     Appeal from Carroll Circuit Court; Terry Crabtree, Judge;
reversed and dismissed.
     Vowell & Atchley, P.A., by: Stevan E. Vowell, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     John Mauzy Pittman, Judge.*ADVREP*CA3*
                           DIVISION II



                                   CACR 95-444

                                                 May 8, 1996


TERRENCE MCCLUNG                   AN APPEAL FROM THE CIRCUIT
          APPELLANT                COURT OF CARROLL COUNTY,
                                   ARKANSAS
                                   [NO. CR91-19-3]

VS.
                                   HONORABLE TERRY CRABTREE,
                                   CIRCUIT JUDGE

STATE OF ARKANSAS                  REVERSED AND DISMISSED
          APPELLEE




                   John Mauzy Pittman, Judge.


     Terrence McClung appeals from his conviction of driving while
intoxicated, for which he was sentenced to one day in jail, was
fined $400.00, and had his driver's license suspended for ninety
days.  He contends that the trial court erred in denying his motion
to dismiss for violation of the speedy trial rules.  We agree and
reverse and dismiss.
     On May 31, 1991, a judgment was filed in the Eureka Springs
Municipal Court sentencing appellant for his convictions of driving
while intoxicated and driving left of center.  On May 31, 1991,
appellant timely appealed those convictions by filing the municipal
court record in the Carroll County Circuit Court.  On June 30,
1992, appellant and his attorney appeared in circuit court and
moved to dismiss the charges on grounds that he had not been
provided with a speedy trial de novo.  The court denied appellant's
motion because none of the documents perfecting appellant's appeal
reflected that they had been served on the prosecutor, who in this
case was the Eureka Springs City Attorney.  On April 22, 1993, the
court entered a written order denying appellant's motion and
tolling the speedy-trial period until appellant properly notified
the prosecutor.  The order reflects that the city attorney had been
present in court on June 30, 1992, when appellant's motion was
presented and denied.
     Appellant's trial in circuit court was finally held on
December 30, 1994.  Before trial, appellant again moved to dismiss
the charges on speedy-trial grounds.  Again, the motion was denied. 
After the trial, appellant was convicted of driving while
intoxicated.
     On appeal, appellant contends that the trial court erred in
denying his motion to dismiss the charges.  The State concedes
error on this point.  We agree and reverse and dismiss.
     Rule 28.1(c) of the Arkansas Rules of Criminal Procedure
provides that, subject to any excludable periods under Rule 28.3,
a criminal defendant charged in circuit court and held to bail, or
otherwise lawfully set at liberty, shall be entitled to have the
charge dismissed with an absolute bar to prosecution if not brought
to trial within twelve months from the time provided in Rule 28.2. 
Our courts have held that the time period within which a defendant
must be brought to trial upon appeal of a misdemeanor conviction to
circuit court begins to run under Rule 28.2 on the day that the
appeal is perfected.  McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989); Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986). 
The primary burden is on the court and prosecutor to assure that a
case is brought to trial in a timely fashion.  Glover v. State, 307
Ark. 1, 817 S.W.2d 409 (1991); see Reed v. State, 35 Ark. App. 161,
814 S.W.2d 560 (1991).  A defendant has no duty to bring himself to
trial, Glover v. State, supra, and the time for trial commences
running without demand by the defendant, Ark. R. Crim. P. 28.2;
Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991).  Once it
has been shown that a trial is to be held after the speedy-trial
period has expired, the State has the burden of showing that any
delay was the result of the defendant's conduct or that it was
otherwise legally justified.  Raglin v. State, supra; Reed v.
State, supra.
     Here, appellant perfected his appeal to circuit court on May
31, 1991, but his trial was not held until some three years and
seven months later, on December 30, 1994.  Therefore, the burden
was on the State to show that at least two years and seven months
of the delay was excludable.  The State failed to meet that burden. 
We need not decide in this case whether appellant was required to
notify the city attorney of his appeal in order to start the
running of the speedy-trial period.  This is true because, even if
we were to assume that appellant did have some such burden, the
city attorney was clearly aware of the appeal no later than June
30, 1992, yet appellant's trial still was not held until two years
and six months later.  Of that thirty-month period, the record
indicates only that the period from June 30 to August 7, 1992, was
excludable and attributable to appellant.  There appears in the
record no reason why appellant's trial could not have been held
within twelve months of August 7, 1992.  Therefore, we hold that
the trial court erred in denying appellant's December 1994 motion
to dismiss.
     Reversed and dismissed.
     Griffen and Mayfield, JJ., agree.