Alexander v. State

• Decision Date: 14 April 1980
• Docket Number: No. CR,CR
• Citation: 268 Ark. 384,598 S.W.2d 395
• Parties: Leroy ALEXANDER, Appellant, v. STATE of Arkansas, Appellee. 79-180.
• Court: Arkansas Supreme Court

Page 395

598 S.W.2d 395

268 Ark. 384

Leroy ALEXANDER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-180.

Supreme Court of Arkansas.

April 14, 1980.

Rehearing Denied May 19, 1980.

Thomas G. Montgomery, West Memphis, for appellant.

[268 Ark. 385] Steve Clark, Atty. Gen. by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

MAYS, Justice.

Upon a charge of first degree murder, appellant was found guilty by a jury of second degree murder and sentenced to imprisonment for 20 years. For reversal on appeal appellant contends that he was denied a right to a speedy trial. We agree.

Appellant, Leroy Alexander, was arrested for first degree murder on August 12, 1978 and incarcerated in the Crittenden County jail without bail to await trial. As far as the record before us reveals, appellant continued to be held without bail after he was formally charged by information on September 5, 1978, and remained in jail without arraignment or any other action on his case for approximately six months, until February 7, 1979, when the prosecuting attorney's office advised the circuit court clerk to notify the appellant that his trial had been set in circuit court for February 26, 1979. Before appellant was notified of a trial setting, however, the Circuit Court of Crittenden County had convened at regular terms on three separate occasions to schedule matters for trial. On February 9, 1979, when appellant received notice of his trial setting, the public defender, acting on appellant's behalf, filed a motion to dismiss the murder charge against appellant for denial of a speedy trial. Before the appellant was actually tried on February 27, 1979, the Circuit Court convened at a regular term on February 19, 1979 for a fourth time.

Although both the state and federal constitutions guarantee a criminal defendant a right to a speedy trial, the meaning of that guarantee in terms of judicial administration is more specifically addressed by the Arkansas Rules of Criminal Procedure. Not only do the Rules of Criminal Procedure require courts to give priority to criminal

cases over other matters in scheduling trials, they establish the highest priority for the scheduling of trials of criminal defendants who like appellant are incarcerated while awaiting trial. Moreover, the rules provide specific time limitations within which a defendant must be brought to trial to prevent his discharge. Since many of our trial judges travel a circuit in [268 Ark. 386] which they are required by statute to open court at specified times in various counties within their judicial district, the time limitation on bringing a defendant to trial is expressed in "full terms of court." Rules 28.1(a) and (b) and 28.2(a) of the Arkansas Rules of Criminal Procedure provide

RULE 28.1 Limitation.

(a) Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of the court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

(b) Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

RULE 28.2 When Time Commences to Run.

The time for trial shall commence running, without demand by the defendant, from the following dates:

(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

Rule 30 establishes the consequences for violation of the speedy trial rule and, excluding periods of necessary delay, provides for absolute discharge of a defendant who is not brought to trial before the expiration of three full terms of court.

Although quantifying the right to a speedy trial in terms of court provides a realistic standard for evaluating the conduct[268 Ark. 387] of prosecutors and courts in utilizing local judicial machinery to bring criminal cases to trial, it does not provide a fixed and uniform time period in which to determine violation of the speedy trial right. When the General Assembly established terms of courts for various jurisdictions by fixing the time of their beginning, it did not expressly fix the time for their ending or require that they last for any uniform period of time. In the absence of a fixed time for the termination of a term of court the general rule is that the term continues until the time fixed by law for the beginning of the next succeeding term of court. Since many of our jurisdictions also include courts with civil and criminal divisions and separate terms, determining which terms to count and when to count them presents further difficulty in assessing compliance with the speedy trial rule. Although Act 432 of 1977 abolished divisions in circuit courts, the act did not become effective until January 1, 1979, some five months after the appellant's arrest. Even before Act 432 of 1977 became effective, however, civil divisions of the court shared the responsibility with criminal divisions for disposing of criminal cases. Therefore, before January 1, 1979, the Crittenden County Circuit Court had three divisions, one criminal and two civil, with each having a responsibility for protecting a criminal defendant's right to a speedy trial and with each division holding two terms a year as follows:

1st division (criminal), on the 3rd Monday in February and the 3rd Monday in September ;

2nd division (civil), on the 4th Monday in January and the 3rd Monday in November ;

3rd division (civil), on the 2nd Monday in May and the 4th Monday in June.

Although the Circuit Court of Crittenden County convened for its September,

November, January and February terms before appellant was tried, the trial court held that appellant should not be discharged because only one "full term of court" had expired before his trial. Relying on our decisions in Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972) and State v. Knight, 259 Ark. 107, 533 S.W.2d 488 (1976), the trial court treated each division like a separate court and, although considering the expired terms of both the [268 Ark. 388] criminal and civil divisions, only added terms in any one division to determine how many terms had expired. Calculating terms by this method, the trial court determined that only the September term had expired in Division I, only the November term had expired in Division II, and no term had expired in Division III. Therefore, the trial court concluded that since no more than one full term of court had expired in any single division, the speedy trial rule had not been violated. Although the trial court's conclusion is consistent with our holding in Gardner and Knight, supra, it is inconsistent with our more recent decisions in Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979) and Beaumont v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980). In Harkness, we not only recognized for the first time the need to add the expired terms of each division if the responsibility for expediting criminal cases was to be meaningfully shared by the judges of the criminal and civil divisions, but that after January 1, 1979, we could no longer calculate terms by any divisional method since divisions would no longer exist. In Beaumont, supra, we plainly recognized that Act 432 abolished divisions of circuit courts. Consequently, after January 1, 1979, the Crittenden County Circuit Court had three judges and held six terms a year with each term ending when the next term within that division began. Therefore, under our decision in Harkness, the September term of Division I expired in January, 1979, the November term of Division II expired in January, 1979, and the January term of the Crittenden County Circuit Court expired on February 19, 1979 when the next succeeding term began instead of three divisions with each divisional term ending only when the February term began, some nine days before appellant was tried. Since the record reveals no reason for the approximately six and one-half month delay in appellant's trial, and more than three full terms of court expired before his trial, he must be discharged for violation of his speedy trial right

Reversed.

FOGLEMAN, C. J., concurs.

HICKMAN and STROUD, JJ., dissent.

FOGLEMAN, Chief Justice, concurring.

The majority[268 Ark. 389] has reached a result that is inevitable and necessarily correct, however regrettable it may be that one who seems to have been guilty of the crime with which he was charged beyond a reasonable doubt will escape punishment. It is the primary function of the judicial system to preserve the rule of law, even if the guilty do escape punishment as a result of the courts' facing up to their responsibility.

This court has spoken on the purpose of speedy trial rules in reference to Ark.Stat.Ann. § 43-1708 (Repl.1977). In Ware v. State, 159 Ark. 540, 252 S.W. 934, we said:

* * * But as its manifest purpose is to promote dispatch in the administration of justice, it must commend itself to the enlightened judgment of every one, who loves law and order, as a wise as well as humane enactment. "Justice delayed is justice denied," says Mr. Gladstone. It is highly important to the public weal that those accused of crime shall be brought to a speedy trial in order that, if guilty, public justice may be meted out without delay. This is as powerful a deterrent to the commission of public offenses as is the knowledge that condign punishment will follow when the lawbreaker is overtaken...