McConaughy v. State, CR

Decision Date26 February 1990
Docket NumberNo. CR,CR
Citation784 S.W.2d 768,301 Ark. 446
PartiesArnold James McCONAUGHY, Appellant, v. STATE of Arkansas, Appellee. 89-205.
CourtArkansas Supreme Court

Mary Ann Gunn, Fayetteville, for appellant.

R.B. Friedlander, Sol. Gen., Little Rock, for appellee.

GLAZE, Justice.

This is an appeal from the appellant's conviction for robbery and theft of property of an E-Z Mart in Springdale, Arkansas, on March 14, 1988. Appellant was sentenced under the habitual offender provision and received a sentence of forty years imprisonment for the robbery conviction and ten years imprisonment for the theft conviction. The sentences were ordered to run concurrently. For reversal, the appellant argues the trial court committed error in denying 1) his motion to dismiss on speedy trial grounds, and 2) his motion to suppress two photographic lineups and the victim's identification of the appellant. We find no error, and thus affirm.

On March 17, 1988, the appellant was arrested and charged by information for the robbery and theft of the E-Z Mart. At his arraignment on March 28, 1988, the appellant entered a plea of not guilty, and the trial date was set for June 2, 1988. On the day set for trial, the appellant changed his plea to not guilty by reason of mental disease or defect. Upon the change of the appellant's plea, the trial court properly entered an order to commit the appellant to the State Hospital for examination. See Ark.Code Ann. § 5-2-305 (Supp.1989). In the order, dated June 2, 1988, the trial judge stated that the examination and observation should not exceed thirty (30) days. A docket entry was made to reflect this order.

On December 1, 1988, the trial court received a letter from the State Hospital stating that the appellant was committed to the hospital on November 8, 1988, and that he was now ready to return to court for disposition. After receiving this letter, the trial court entered an order on December 7, 1988, directing that the appellant be brought before the court for trial on "call of the court." This order is noted on the docket. On March 23, 1989, the appellant filed his motion to dismiss on speedy trial grounds pursuant to A.R.Cr.P. Rule 28.2. His motion was dismissed, and the appellant was tried on March 27, 1989.

Under A.R.Cr.P. Rule 28.1, the state had twelve (12) months from the time provided in Rule 28.2 to bring the appellant's case to trial, excluding only such periods of necessary delay as provided for in Rule 28.3. Both sides agree that the time for trial commenced running on March 17, 1988. Appellant was tried ten (10) days after the twelve (12) month deadline.

Once it is shown that the trial was held after the speedy trial period set out in Rule 28.1 had expired, the state has the burden of showing that any delay was the result of the appellant's conduct or was otherwise legally justified. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We hold that the state has met this burden. Pursuant to Rule 28.3(a), the period of delay resulting from an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial is excludable. Here, the appellant was committed at the State Hospital for observation and examination for a period of twenty-three (23) days. Since the appellant was tried only ten (10) days after the twelve (12) month trial deadline, this twenty-three (23) day excludable period is more than enough to bring the state in compliance with the speedy trial rules.

In so holding, we note the appellant's argument that the trial court failed to make a written order or docket entry noting the number of days of the excluded period in compliance with Rule 28.3(i). We have stated that a trial court should enter written orders, or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify to a day certain the time covered by such excluded periods. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). But, a trial court's failure to comply with Rule 28.3(i) does not result in automatic reversal. We have held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).

Here, the record clearly reflects that on the original trial date, the appellant delayed the proceedings by changing his plea to not guilty by mental disease or defect. The docket reflects that the trial judge entered an order to commit the appellant to the State Hospital for not more than thirty (30) days. Further, the record shows that the appellant was not able to be committed to the State Hospital until November 8 due to a waiting list, and that he was at the hospital for examination and observation for twenty-three (23) days. Hence, we hold that the record is sufficient to satisfy the requirements of Rule 28.3(i).

In the second issue, the appellant argues that the trial court erred in refusing to suppress the store clerk's pretrial identification of the appellant from two photographic lineups. Specifically, the appellant contends that under the totality of the circumstances the identification procedures were so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. We disagree.

Linda Lance was the store clerk on duty the morning the robbery occurred. She stated that the...

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28 cases
  • Standridge v. State
    • United States
    • Arkansas Supreme Court
    • April 29, 2004
    ...showing that any delay was the result of the defendant's conduct or was otherwise legally justified. Miles, supra; McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Here, the State has the burden of showing that at least 125 days were properly in order for Standridge to have been ti......
  • Jones v. State
    • United States
    • Arkansas Supreme Court
    • March 11, 1996
    ...for the continuances and to specify to a day certain, the time covered by such excluded periods (emphasis added). McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). In order to provide any impetus behind Rule 28.3, we must adhere to ......
  • Robinson v. State
    • United States
    • Arkansas Supreme Court
    • May 9, 1994
    ...surrounding the identification to permit its use and we will not reverse the ruling unless it is clearly erroneous. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). We do not find the trial court's decision on this point to be clearly Appellant argues that a directed verdict should......
  • Rhodes v. Capeheart, CR
    • United States
    • Arkansas Supreme Court
    • May 3, 1993
    ...(1993); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). See also Henson v. State, 38 Ark.App. 155, 832 S.W.2d 269 (1992) (when a case is delayed by the accused and that del......
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