Mark Singson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

MARK SINGSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-268

February 27, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR98-3751

HON. WILLARD PROCTOR, JR., JUDGE

AFFIRMED

Appellant Mark Singson was convicted of aggravated robbery, theft of property, and fleeing. He was sentenced to 240 months in the Arkansas Department of Correction for the aggravated robbery conviction, one year in the Pulaski County jail and a $1,000 fine for the theft of property conviction, which was merged into the aggravated robbery conviction, and 180 months in the Arkansas Department of Correction for the fleeing conviction. Appellant argues that these charges should have been dismissed for violation of his right to a speedy trial. We disagree and affirm.

The following dates are undisputed and relevant to the speedy trial calculation. Appellant was arrested on July 30, 1998. The trial court granted appellant's request for a mental evaluation on February 1, 1999. The report of the mental evaluation was filed on September 29, 1999. Appellant sought and was granted a continuance of his trial on January 5, 2000. Appellant's trial took place on June 27 and 28, 2000.

A defendant arrested and then charged in circuit court is entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from hisarrest. Ark. R. Crim. P. 28.1(c) & 28.2(a) (2001). Once a defendant has established that he was not timely tried, the burden then shifts to the State to show that any delay was the result of the defendant's conduct, or was otherwise justified. Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991). Periods of delay resulting from other proceedings concerning the defendant, such as an examination and hearing on the competency of the defendant, are excluded from the speedy trial calculation. Ark. R. Crim P. 28.3(a) (2001). The time necessary to complete a mental examination requested by a defendant is excluded from the twelve-month period under the speedy-trial rule. Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). Furthermore, the excludable period resulting from a defendant's request for mental examination begins on the date the examination is ordered and continues until the date the report of the examination is filed. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998).

According to the trial court's docket entry, appellant requested an inpatient examination on February 1, 1999. However, the order granting his request did not specify inpatient, and the State Hospital sent an examiner to the jail to do an outpatient examination of appellant. He refused to submit to the examination, and on March 29,1999, his attorney requested the court to order an inpatient examination. This order was eventually entered, the examination was performed, and the examination report was filed on September 29, 1999. Appellant argues that the State was responsible for the delay because an inpatient mental examination was initially requested, but the written order erroneously reflected an outpatient examination, and it took several months before the error was corrected.

In this case, it is important to note that the mental examination was ordered at the request of the defendant. The statute in effect at the time of the hearing in this case gave the trial court the discretion to order an inpatient or an outpatient examination. See Ark. Code Ann. § 5-2-305 (b)(1)(Repl. 1997).1 In Scott v. State, supra, our supreme court held that the time from the date of the order of a mental examination until the date the report is filed is excluded from the speedy trial calculation, even where the delivery of the order may have been delayed. We are not persuaded that the facts of this case are distinguishable from Scott. Further, there is no distinction in Scott between an inpatient and an outpatient examination, and we are not persuaded that any meaningful distinction exists in this case. Similarly, the supreme court has refused to charge to the State delays caused by the failure of jail personnel to bring a defendant to his examination three times. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991). The court in Brawley specifically held that the burden of proof does not shift to the State to account for delays in completing the mental examination.

We therefore uphold the court's ruling that the period from February 1, 1999, when the mental examination was requested, until September 29, 1999, when the examination report was filed, is excluded from the speedy trial calculation. Because no other periods are challenged on appeal, we affirm the court's conclusion that the appellant was provided a speedy trial.

Affirmed.

Stroud, C.J., agrees.

Pittman, J., concurs.

1 The 2001 amended version of this statute vests sole discretion in the Director of the Division of Mental Health Services to determine the location of the examination.