Gardner v. State
| Decision Date | 12 June 1972 |
| Docket Number | No. 5720,5720 |
| Citation | 481 S.W.2d 342,252 Ark. 828 |
| Parties | Charles GARDNER, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Ruud L. DuVall, Fayetteville, for appellant.
Ray Thornton, Atty. Gen., by John D. Bridgforth, Asst. Atty. Gen., Little Rock, for appellee.
Charles Gardner was arrested on April 9, 1971, and lodged in the Craighead County Jail at Jonesboro. On April 13, 1971, he was charged on information filed by the prosecuting attorney, with two counts of violating the Arkansas Hot Check Law in Craighead County, Arkansas. He was unable to make bond in the amount of $1,500 so he remained in jail. When his case finally came on for trial on November 15, 1971, he moved for a dismissal of the charges pending against him for the reason that he had been denied the right to a speedy trial under the Sixth Amendment of the United States Constitution, and under Art. 2, § 10 of the State Constitution. The motion to dismiss was denied by the trial court and Gardner has appealed. He contends that two terms of the Craighead County Circuit Court had expired while he was incarcerated in the county jail and he was entitled to a dismissal of the charges against him as a matter of law under Ark.Stat.Ann. § 43--1708 (Repl.1964). Gardner also contends that the trial court erred in not giving him a speedy trial in compliance with this court's per curiam order of June 28, 1971, rendered under authority of Act 470 of 1971.
The problem involved on this appeal is common to several judicial circuits in Arkansas as well as courts in other states. The overall problem is congested dockets both criminal and civil. To meet the expanding caseload in the various judicial circuits in Arkansas, some of the circuits have been divided into separate divisions with separately elected judges for each division. Craighead County is a part of the second circuit which was divided into three divisions by Act 505 of the Acts of 1965, Ark.Stat.Ann. § 22--322.10 (Supp.1971). The statute designated the divisions as first, second and third divisions with the first division designated as criminal and the other two as civil. A provision of this same Act digested as § 22--322.11 provides as follows:
This Act further provides (§ 22--322.12):
Thus, it is abundantly clear that one of the main purposes and intended effect of the Act, was to permit the trial judges to transfer cases either civil or criminal from one division to the other so that the litigants in civil cases may obtain justice promptly and without delay, and so that the accused in criminal prosecutions may enjoy the right to a speedy and public trial. The various terms of the circuit courts are fixed by statute. Ark.Stat.Ann. § 22--310 (Supp.1971) as it applies to the terms of court in Craighead County, is as follows:
'Craighead county, 2nd circuit.
Jonesboro District.
Terms, 1st division (criminal), on the 3rd Monday in April and the third Monday in November, 2nd division (civil), on the 2nd Monday in May and the 1st Monday in July; 3rd division (civil), on the 2nd Monday in January and the 2nd Monday in October.'
Returning now to the case at bar, on September 21, 1971, Gardner filed a petition in the Craighead County Circuit Court, alleging that he had been incarcerated while awaiting trial since his arrest on April 9, 1971. In the petition he claimed his right to a speedy trial and prayed that his case be transferred from the criminal docket to the civil docket, and that he be tried in the term of court commencing October 11, 1971. In support of his petition for a transfer to the civil docket, the petitioner attached a memorandum brief reciting § 22--322.11 and § 22--322.12, supra, and also set out the per curiam order of this court entered June 28, 1971, pursuant to the provisions of Act 470 of 1971. On September 22, 1971, the judge of the criminal division of the Craighead Circuit Court denied Gardner's petition to transfer, because of the congestion of the civil docket for the upcoming term commencing on October 11, 1971.
In the motion to dismiss, filed on November 11, 1971, Gardner stated that he had been incarcerated in the Craighead County jail for a period approaching eight months; that he had been at all times demanding a speedy trial which had been denied him. He alleged that he had demanded a trial by letter to the prosecuting attorney on July 9, 1971, and had filed a petition for transfer of his case to the civil division of the second circuit court so that he could obtain a speedy trial, and he again called the trial court's attention to our per curiam entered on June 28, 1971. Gardner alleged that there had been one criminal and three civil terms of the Craighead Circuit Court during the time he had been incarcerated, and that he was entitled to a dismissal of the charges against him under provisions of Ark.Stat.Ann. § 43--1708 (Repl.1964) which is as follows:
'Time accused may be kept in jail.--If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.'
In the trial court's order denying Gardner's motion to dismiss, the court found that the per curiam order of this court entered on June 28, 1971.
'does not alter the existing statutory law pertaining to the jurisdiction of the various Divisions of the Second Judicial District's Circuit Courts.'
The per curiam order above referred to is as follows:
'Pursuant to the provisions of Act 470 of 1971 the following rules are hereby promulgated by the Supreme Court of Arkansas in order that the ends of justice may be more efficiently and expeditiously served.
All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial.'
The trial court was correct in stating that this per curiam order does not alter the existing statutory law pertaining to the jurisdiction of the various divisions of the second judicial district's circuit courts. The above per curiam only aids in the full compliance with the intent and purpose of Act 470 of 1971 under the jurisdiction ...
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