Jonathon Miller v. State of Arkansas
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D.P. Marshall Jr.
December 5, 2007
DIVISION II
CACR07501
5 December 2007
JONATHON MILLER,
APPELLANT
AN APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
[CR2005577]
v.
THE HONORABLE CAROL CRAFTON
ANTHONY, CIRCUIT JUDGE
STATE OF ARKANSAS,
APPELLEE
REVERSED AND DISMISSED
This case is about a criminal defendant’s right to a speedy trial. Jonathon Miller
was arrested on 12 September 2005 on drug charges. His case was set for trial on three
dates in the spring and summer of 2006, but was not tried on any of those dates. On
4 October 2006, one year and twentytwo days after he was arrested, Miller had his
day in court. A jury convicted him of the drug charges. He now appeals that
conviction, arguing that the State violated his right to a speedy trial. After our de novo
review, Cherry v. State, 347 Ark. 606, 609, 66 S.W.3d 605, 607 (2002), we agree.
Because Miller was released on bond before trial, his arrest date started the one
year, speedytrial clock. Ark. R. Crim. P. 28.2(a). In Miller’s motion to dismiss, he
showed that his case did not go to trial until more than one year after he was arrested.
Miller thus presented a prima facie case of a speedytrial violation. The burden shifted
to the State to show that the delay resulted from Miller’s conduct or was otherwise
justified. Ferguson v. State, 343 Ark. 159, 167, 33 S.W.3d 115, 120 (2000); Ark. R.
Crim. P. 28.1(b).
The circuit court first concluded that two periods of delay were excludable
because they resulted from pretrial motions. Before Miller’s case went to trial, the
State moved for a speedytrial exclusion stating that the case did not go to trial on 27
June 2006 because of a congested docket. Miller also moved to reveal the identity of
a confidential informant, to sever his offenses, and for sanctions. In its order denying
Miller’s motion to dismiss, the circuit court excluded thirty days for the State’s motion,
and held that Miller’s motions had also “tolled speedy trial for at least thirty days.”
Either exclusion, if proper, would bring Miller’s trial within the required oneyear
period.
The State, however, did not demonstrate that any delay resulted from any of the
pretrial motions. The words of Rule 28.3(a) make clear that actual delay is the
criterion. That Rule excludes:
The period of delay resulting from other proceedings concerning the
defendant, including but not limited to an examination and hearing on the
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competency of the defendant and the period during which he is
incompetent to stand trial, hearings on pretrial motions, interlocutory
appeals, and trials of other charges against the defendant. No pretrial
motion shall be held under advisement for more than thirty (30) days, and
the period of time in excess of thirty (30) days during which any such
motion is held under advisement shall not be considered an excluded
period.
Ark. R. Crim. P. 28.3(a) (emphasis added).
In Ferguson, supra our supreme court discussed the meaning of “hearings on
pretrial motions.” It stated that “the excluded period contemplated by the rule begins
at the time the pretrial motion is made and includes those periods of delay attributable
to the defendant until the motion is heard by the court and not more than thirty days
thereafter.” 343 Ark. at 170, 33 S.W.3d at 122. In Ferguson, for example, the parties
filed numerous pretrial motions, and the circuit court granted at least one continuance
so the parties could obtain information relevant to the pretrial motions. After various
hearings, the circuit court took the motions under advisement and requested briefs from
both parties before issuing its rulings. The proceedings on the motions delayed the
trial. 343 Ark. at 171, 33 S.W.3d at 123.
This case is different. Here, no delay resulted from the pretrial motions. The
State did not respond to Miller’s motions, nor did the court rule on them, until the day
of Miller’s trial. Miller did not respond to the State’s motion until two days before the
trial. No pretrial hearings about the motions took place. There is nothing in the record
to indicate that the circuit court granted any continuance as a result of these pretrial
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motions. The circuit court never took any of the motions “under advisement,” and
therefore the Rule’s 30day maximum exclusion for the court’s consideration of
motions simply does not apply.
The act of filing a pretrial motion does not toll the speedytrial period. Some
delay attributable to the defendant must actually result from the motion. If we were to
hold otherwise, then the State could postpone a defendant’s trial for more than a year
any time the State or the defendant filed any motion—even if the motion caused no
delay. Ferguson, 343 Ark. at 170–71, 33 S.W.3d 122–23. The circuit court’s reading
of Rule 28.3 would undermine the State’s obligation to bring Miller to trial within
twelve months of the date of his arrest absent the limited circumstances outlined in the
Rule. Zangerl v. State, 352 Ark. 278, 288, 100 S.W.3d 695, 701 (2003).
The circuit court also concluded that a period of time was excludable because
the court’s trial calendar was congested. The court’s decision on this issue, however,
does not satisfy Rule 28.3(b)’s requirements. Though the order describes the circuit
court’s busy schedule during part of the summer in 2006, it does not address any
prejudice that might have resulted to Miller from this delay, nor does it explain why
Miller was not brought to trial on any of the open days on the trial calendar. The
court’s ruling about docket congestion was therefore insufficient. Berry v. Henry, 364
Ark. 26, 30–32, 216 S.W.3d 93, 96–97 (2005); Ark. R. Crim. P. 28.3(b)(1)–(3).
Miller was not required to “bring himself to trial or to bang at the courthouse
door.” Gwin v. State, 340 Ark. 302, 306–07, 9 S.W.3d 501, 504 (2000). The State did
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not show that its delay in trying Miller either resulted from his conduct or was
otherwise justified. The circuit court’s contrary conclusion was error. We therefore
reverse Miller’s conviction, and dismiss this case. Ark. R. Crim. P. 28.1(c) and 30.1.
VAUGHT and MILLER, JJ., agree.
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