Campbell v. State, CA

• Decision Date: 14 December 1988
• Docket Number: No. CA,CA
• Citation: 761 S.W.2d 613,26 Ark.App. 133
• Parties: Rondal CAMPBELL and Randy Campbell, Appellants, v. STATE of Arkansas, Appellee. CR 88-134.
• Court: Arkansas Court of Appeals

Page 613

761 S.W.2d 613

26 Ark.App. 133

Rondal CAMPBELL and Randy Campbell, Appellants, v. STATE of Arkansas, Appellee.

No. CA CR 88-134.

Court of Appeals of Arkansas Division I.

Dec. 14, 1988.

Thomas Martin, Jasper, Dale Finley, Russellville, for appellants.

Steve Clark, Atty. Gen., Little Rock, for appellee.

CORBIN, Chief Judge.

This criminal appeal comes to us from Newton County Circuit Court. Appellant, Rondal Campbell, was convicted of theft of property and was sentenced to pay a $2,500.00 fine. Appellant, Randy Campbell, was convicted of burglary and theft of property and sentenced to pay a $2,500.00 fine on each count. Appellants' only argument on appeal is that the state violated their right to a speedy trial. Because we find merit to this argument, we reverse and dismiss.

The charges brought against both appellants and a third person resulted from an incident on June 26, 1986, wherein Tanner Hardware and Market in Jasper, Arkansas, was burglarized. A felony information was filed July 10, 1986, charging appellant Rondal Campbell with burglary and theft of property. A week later, on July 18, 1986, a felony information was filed charging appellant Randy Campbell with the same offenses. These cases were consolidated for trial. Numerous trial dates were set and continued prior to trial. In issue are the last three dates on which trial was set. The case was set for December 15, 1987; however, the trial was cancelled due to an ice storm. By court order, the case was rescheduled for January 6, 1988; however, on that morning an abundant snowfall necessitated that the trial again be cancelled. By court order, the case was reset for trial on February 22, 1988. On February 3, 1988, and February 12, 1988, respectively, appellants, Rondal and Randy Campbell filed motions to dismiss alleging the time for trying the case had lapsed and the charges should be dismissed.

A hearing was held on the motion on February 19, 1988, and the case proceeded to trial as scheduled on February 22, 1988. On February 29, 1988, the trial court rendered an order denying appellants' motions and finding that the continuances from December 15, 1987, to January 6, 1988, and from January 6, 1988, to February 22, 1988, constituted "good cause" for delay under Arkansas Rules of Criminal Procedure 28.3.

The time within which a defendant must brought to trial is determined by Arkansas Rules of Criminal Procedure 28.1(c):

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty ... shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The time for trial shall commence running from the date the charge is filed. Ark.R.Crim.P. 28.2(a).

The appellants were charged on July 10 and July 18, 1986, and tried February 22, 1988, exceeding the eighteen month period by over a month for each appellant. Once an accused has shown the trial is to be held after the speedy trial period has expired, the state bears the burden of showing the delay is legally justified. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).

At the hearing on the motion to dismiss, the state presented the testimony of the circuit clerk of Newton County regarding the weather conditions on the days in question. Regarding the December 15, 1987, trial date the clerk stated that an ice storm occurred on the 14th which caused the roads to be impassable and extremely bad on the morning of trial. The clerk further opined that the next day the temperature warmed up clearing the roads except in the rural "brush" areas of the county. As regards the subsequent trial date of January 6, 1988, the clerk testified that a "big snow" occurred which again caused extremely dangerous road conditions; however, he could not recall the road conditions for the following day. On both dates, the trial was continued because it was unsafe for the jurors and witnesses to try to drive to court.

In discussing the weather and the continuances, the trial court stated at the hearing that he recalled the situation as follows:

As I remember, the ice storm lasted several days and as I remember, the snow that we encountered on the 5th of January, it continued for several days because I remember my children being out of school here in Boone County for at least four days that week of January and I...