Bennett v. State

Claude BENNETT v. STATE of Arkansas

CA CR 95-451                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered June 26, 1996


1.   Criminal procedure -- trial scheduled after speedy-trial
     period expired -- burden of proof on State to show delay
     legally justified. -- Once it has been shown that trial was
     scheduled to be held after the speedy-trial period had
     expired, the State has the burden of showing that any delay
     was the result of the petitioner's conduct or was otherwise
     legally justified; the primary burden is on the court and the
     prosecutor to assure that a case is brought to trial in a
     timely fashion; a defendant has no duty to bring himself to
     trial.  

2.   Criminal procedure -- speedy trial rule -- delays caused by
     defendant's motion to transfer not excludable. -- Where, on a
     defendant's motion, a circuit court transfers a charge to
     another court, the entire time during which the case is
     pending before the circuit court cannot be declared an
     excludable period under Rule 28.3(a) of the Rules of Criminal
     Procedure; under Rule 28.3(a) delays caused by hearings on
     pretrial motions filed by the defendant are specified as
     excludable periods; Rule 28.3(a) limits the excludable period
     caused by a pretrial motion taken under advisement not to
     exceed thirty days.  

3.   Criminal procedure -- speedy-trial period clearly exceeded --
     circuit court judgment reversed and dismissed. -- Where, even
     if the court assumed that the State was entitled to have
     excluded thirty days based on appellant's first motion to
     transfer, eighteen days as a result of appellant's second
     motion to transfer, and a total of sixty-six days due to
     motions for continuance filed by both the State and the
     appellant in circuit court, the total excludable period would
     still have left the time between arrest and trial at more than
     400 days, well in excess of the twelve-month limit, the
     judgment of the circuit court was reversed and dismissed.
     

     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
reversed and dismissed.
     McArthur & Finkelstein, by:  William C. McArthur, for
appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     John E. Jennings, Chief Judge.
*ADVREP*CA1*
                              DIVISION III



                                        CACR 95-451
                                                                         
                                                       June 26, 1996


CLAUDE BENNETT                       APPEAL FROM PULASKI COUNTY
          APPELLANT                  CIRCUIT COURT     
                                   
VS.

                                     HONORABLE CHRIS PIAZZA,
                                     CIRCUIT JUDGE
STATE OF ARKANSAS                  
          APPELLEE                   REVERSED AND DISMISSED







                     John E. Jennings, Chief Judge.


     Claude Bennett was found guilty in Pulaski County Circuit
Court of driving while intoxicated.  He was sentenced to one year
imprisonment with an additional two years suspended.  On appeal,
Bennett contends that the trial court erred in denying his motion
to dismiss based on a lack of speedy trial.  We agree and therefore
reverse and dismiss.
     Rule 28.1 of the Rules of Criminal Procedure provides that a
defendant is entitled to a dismissal if not brought to trial within
twelve months.  The State concedes that because Bennett was
admitted to bail, the speedy-trial time runs from the date of his
arrest, June 27, 1993.  Rule 28.2(a).  Once it has been shown that
trial was scheduled to be held after the speedy-trial period had
expired, the State has the burden of showing that any delay was the
result of the petitioner's conduct or was otherwise legally
justified.  Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). 
The primary burden is on the court and the prosecutor to assure
that a case is brought to trial in a timely fashion.  A defendant
has no duty to bring himself to trial.  Novak v. State, 294 Ark.
120, 741 S.W.2d 243 (1987). 
     The record in the case at bar can only be described as meager. 
Appellant was arrested on June 27, 1993.  His case was filed in
Little Rock Municipal Court.  On July 20, 1993, appellant moved to
transfer to North Little Rock Municipal Court because of a conflict
of interest between his then counsel, Mr. Grasby, and the Little
Rock municipal judge.  On November 30, 1993, a second motion to
transfer was filed by the appellant.
     On December 17, 1993, appellant was arraigned in North Little
Rock Municipal Court and the case was set for trial on May 24,
1994.  On June 22, 1994, the State filed an information against
the appellant in Pulaski County Circuit Court.  On July 20, 1994,
appellant moved for a continuance to hire a new attorney.  The
continuance was granted until August 16, 1994, at which time
appellant was arraigned in circuit court.  On September 27, 1994,
appellant waived jury trial and his trial was set for November 3,
1994.  On November 3, the State moved for a continuance because the
breathalyzer machine operator was unavailable.  The trial court
continued the case to December 13, 1994.  On that date, appellant
was tried and found guilty of DWI, fourth offense.  
     The time from the appellant's arrest until his trial was thus
527 days, well in excess of the 365 days permitted by the rule. 
The circuit court held that the period of time from July 20, 1993,
when appellant first moved to transfer to North Little Rock
Municipal Court, until May 24, 1994, the date his trial was set in
that court, was excludable.  The court's ruling cannot be sus-
tained.  
     This case is governed, in principle, by State v. McCann, 313
Ark. 286, 853 S.W.2d 886 (1993).  There, McCann, a juvenile, was
arrested on October 1, 1991, and charged in circuit court.  At his
scheduled trial on April 13, 1992, McCann moved to transfer the
case to juvenile court and the circuit judge granted the motion. 
The case was subsequently heard in juvenile court on October 13,
1992.  
     In McCann, the supreme court said:
               The State asks us to interpret this rule
          so that where, on a juvenile defendant's
          motion, a circuit court transfers a felony
          charge over to juvenile court, the entire time
          during which the case is pending before the
          circuit court be declared an excludable period
          under Rule 28.3(a)....  [W]e must reject the
          State's argument.

               Under Rule 28.3(a) delays caused by
          hearings on pretrial motions filed by the
          defendant are specified as excludable periods. 
          Rule 28.3(a) limits the excludable period
          caused by a pretrial motion taken under      
          advisement not to exceed thirty days.  

               As mentioned above, McCann's motion to
          transfer was not made until the date of trial
          on April 13, 1992, the circuit court heard his
          motion and granted it on that same date.  A
          memorandum in the record indicates acceptance
          of the transfer by the juvenile court on
          April 14.  Applying Rule 28.3(a) to these
          facts, the only time that is remotely attritu-
          able to McCann and, thus excludable, is the
          one day between submission of McCann's motion
          to transfer in one court and acceptance by the
          receiving court.  

     If we were to assume that the State is entitled to have
excluded thirty days based on appellant's first motion to transfer,
eighteen days as a result of appellant's second motion to transfer,
and a total of sixty-six days due to motions for continuance filed
by both the State and the appellant in circuit court, the total
excludable period of 114 days would leave the time between arrest
and trial at more than 400 days, well in excess of the twelve-month
limit.
     For the reasons stated the judgment of the circuit court is
reversed and dismissed.
     Reversed and dismissed.
     ROGERS and NEAL, JJ., agree.