Michael S. Wilson v. State of Arkansas

ar03-211

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

MICHAEL S. WILSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-211

NOVEMBER 5, 2003

APPEAL FROM LONOKE COUNTY CIRCUIT COURT

[NO. CR2000-452]

HONORABLE LANCE L. HANSHAW, CIRCUIT JUDGE

REVERSED AND DISMISSED

Andree Layton Roaf, Judge

Following a bench trial held simultaneously with a revocation hearing on an earlier case, appellant Michael Wilson was convicted of possession of drug paraphernalia and of being a felon in possession of a firearm. The trial court also revoked Wilson's probation, and he was sentenced to a total of thirteen years' imprisonment. On appeal, Wilson argues (1) that the trial court erred in denying his motion to suppress evidence and (2) that the trial court erred in denying his motion to dismiss on speedy-trial grounds. Wilson does not assert any error in connection with the revocation of his probation in this appeal. We agree that the trial court erred in denying Wilson's motion to dismiss on speedy-trial grounds, and we reverse and dismiss his convictions; thus, we do not address his first point on appeal regarding the denial of his motion to suppress.

Wilson was arrested on September 26, 2000, after contraband was discovered while officers were at his residence in the process of serving a writ of possession. Wilson was charged with possession of paraphernalia, being a felon in possession of a firearm, and cruelty to animals. The bench trial, along with the revocation hearing on Wilson's prior conviction, was held on August 16, 2002. Prior to the trial, on October 31, 2001, Wilson filed a motion to dismiss the charges against him for lack of a speedy trial. After a hearing, the trial court denied the motion, finding that there was still time remaining to try Wilson.

Wilson argues on appeal that the trial court erred in denying his motion to dismiss on speedy-trial grounds. Under Ark. R. Crim. P. 28.1, an accused must be brought to trial within twelve months from the date of his arrest if the accused has been continuously held in custody or on bail since the time of his arrest for the offense charged. Ark. R. Crim. P. 28.1(c) and 28.2(a); Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). In calculating the speedy-trial period, necessary periods of delay are excluded, as authorized in Ark. R. Crim. P. 28.3. It is well-settled that a defendant has no duty to bring himself to trial; rather, the burden is on the court and the prosecutor to ensure that the trial is held in a timely fashion. Gondolfi, supra. Once it has been determined that the trial took place outside the speedy-trial period of twelve months, the State bears the burden of proving that the delay was the result of the defendant's conduct or was otherwise legally justified. Id. A defendant is entitled to have the charges dismissed with an absolute bar to prosecution if he is not brought to trial within twelve months, excluding such periods of necessary delay authorized in Rule 28.3. Id.

Wilson was arrested on September 26, 2000, and his bench trial was held on August 16, 2002. As Wilson asserts, this period consists of 689 days, which is 324 days beyond the twelve-month period for bringing an accused to trial. The filing of Wilson's motion to dismiss on October 31, 2001, tolled the speedy-trial period. Id. Because more than twelve months had elapsed from the date of Wilson's arrest until the date that the motion to dismiss was filed, the State thus had the burden to show that the delay was the result of Wilson's conduct or was otherwise justified. Id.

In its order denying Wilson's motion to dismiss, the trial court noted that the following periods were tolled for speedy-trial purposes: January 22, 2001, until May 15, 2001; June 28, 2001, until July 12, 200l; and October 23, 2001, until trial. In his motion to dismiss, as well as on appeal, the only period of time that Wilson argues should not have been excluded was the period from January 22, 2001, until May 15, 2001. Immediately prior to the hearing on January 22, 2001, which primarily pertained to the State's petition to revoke Wilson's probation, Wilson notified his counsel, Mr. Edgar Thompson, that there might be a conflict of interest because Wilson expected to testify as a witness for the prosecution in a case where Thompson represented the defendant. Thompson then raised this issue to the trial court at the hearing and the following discussion occurred:

Prosecutor: 99-319, Michael Wilson, is a revocation. Mr. Wilson also has other charges pending, 2000-452. Your Honor, it is my understanding that Mr. Thompson has a conflict and wants to get off this case.

Thompson: Your Honor, I am willing to do whatever the Court tells me to do. However, it was brought to my attention this morning, and I was unaware of it. This defendant is the father of Misty Gilby. Misty Gilby is Nigel Gilby's wife. This is the complaining witness in the case set for trial tomorrow. He is going to testify at that trial if and when it occurs.

* * *

Thompson: This gentleman is the father of the victim in the Nigel Gilby case.

  * * *

Thompson: He is going to testify, I understand, at the trial, along with his wife who is sitting over here.

Court: Are we going to trial on Mr. Gilby?

Prosecutor: We are not going to trial tomorrow. It has been continued, Your Honor.

Thompson: But he points out to me that he -- he feels that if he -- he asked me to come out and talk to him. He feels that it is a conflict, and he doesn't see how he wants me to represent him and Nigel Gilby, and I was not aware of that until today.

Defendant: I didn't find out until Saturday night that he was Nigel's attorney.

Court: Well, Mr. Thompson, can you notify your . . .

Thompson: I can do that, Your Honor.

Court: Notify your agency that you have this conflict.

* * *

Court: Notify the agency and have them -- or the commission, and have them appoint somebody else.

The trial court entered an order for appointment of new counsel in both of Wilson's cases on January 30, 2001. In his motion to dismiss, Wilson argued that he was not asking that his attorney be relieved in case number 2000-452, but only that he be relieved on the revocation because the conflict of interest would have been resolved by the date of trial on his new charges, which was not set until July 2001. At the hearing on his motion to dismiss, Wilson testified that he was not aware that he was being appointed new counsel on the new charges until May 2001. He further testified that he was not aware of the January 30 order requesting appointment of new counsel in both cases. The trial court disagreed with Wilson's arguments, although the trial court noted that the "Public Defender's Commission did apparently drag their feet in appointing someone," and found that speedy trial was tolled from January 22, 2001, until May 15, 2001, when the new counsel entered an appearance in Wilson's case. Thus, the trial court found that there was time remaining to try Wilson.

Wilson again argues on appeal that the period of time from January 22 until May 15, 2001, should not be excluded because he was only requesting new counsel on the revocation. The State asserts that the discussion at the January 22 hearing reflects that new counsel was being requested in both cases. The State contends that this 113-day period was properly excluded as one resulting from the need for the appointment of new counsel. We disagree with this contention.

As stated earlier, once a prima facie case of a speedy-trial violation has been established by the defendant, the State has the burden to show that the delay was justified, either by the defendant's conduct or otherwise. Gondolfi, supra. In this case, the period of time that elapsed before the appointment of new counsel, from January to May 2001, did not delay the trial date in case number 2000-452, as the next hearing in that case had already been set for July 2001 at the time of the January 22 hearing when Wilson approached his attorney about the possible conflict, and no continuance was requested or granted due to the appointment of new counsel. Thus, the State has not shown how the need for appointment of new counsel in any way delayed the date of Wilson's trial.

In Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991), the supreme court found that the period of delay due to the appointment of new defense counsel was not excludable as a delay for good cause under Ark. R. Crim. P. 28.3(h). In Glover, defense counsel filed a motion to withdraw because of a conflict of interest, and the trial date had to be reset because new counsel was not appointed for two months. The Court distinguished that case from other cases holding that the period of delay necessary for appointment of new defense counsel is excludable, because in those other cases, the delays were occasioned by actions taken by the defendants. Id. The Court found that the defendant in Glover did nothing to cause his trial to be delayed beyond the time for a speedy trial. Id.; see also Archer v. State, 271 Ark. 365, 609 S.W.2d 91 (Ark. App. 1980) (holding that periods of time where the defendant's appointed counsel moved to withdraw because of conflicts of interest were not excludable as continuances sought by the defendant).

In the present case, Wilson did nothing to cause his trial to be delayed beyond the time for speedy trial. In fact, as opposed to the defendant in Glover, Wilson's trial date did not even have to be reset due to defense counsel's conflict of interest. Thus, this case can be distinguished from other cases, such as the one cited by the State, holding that the period of delay necessary for appointment of new counsel is chargeable to the defendant. See, e.g., Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999) (stating that trial date had to be reset where defendant was unable to work with his counsel and new counsel had to be appointed); Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982) (holding that speedy trial was not violated where counsel moved to withdraw due to defendant's failure to cooperate and where trial date was rescheduled); Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981) (finding that postponement of the scheduled trial was for good cause where attorneys were disqualified because of conflicts of interest). Thus, we find that the period of time from January 22, 2001, until May 15, 2001, should not be excluded from the speedy-trial calculation.

The period of time from Wilson's arrest on September 26, 2000, until the date he filed his motion to dismiss on October 31, 2001, consists of 400 days. The only other excludable periods of time noted by the trial court in its order denying Wilson's motion to dismiss are from June 28 until July 12, 2001, and from October 23, 2001, until the date of trial, although the filing of the motion to dismiss on October 31, 2001, then tolled the speedy-trial period. Gondolfi, supra. Even if the two periods from June 28 to July 12, 2001, from the date Wilson's motion to suppress was filed until the decision denying the motion, and from October 23 to October 31, 2001, due to a "crowded docket," are properly excluded, there are still only 22 days that are tolled out of the 400-day period. Therefore, even if these periods of delay are excluded, more than twelve months passed from the date of Wilson's arrest until the date his motion to dismiss on speedy-trial grounds was filed. Because the State did not prove that the remaining delay was the result of Wilson's conduct or was otherwise justified, Wilson is entitled to an absolute dismissal of the charges against him. Id.

Reversed and dismissed.

Stroud, C.J., and Neal, J., agree.