Moody v. Arkansas County Circuit Court
| Decision Date | 26 September 2002 |
| Docket Number | No. CR 02-39.,CR 02-39. |
| Citation | 350 Ark. 176,85 S.W.3d 534 |
| Parties | Derrick Rumunda MOODY v. ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT. |
| Court | Arkansas Supreme Court |
Morse U. Gist, Jr., Hot Springs, for appellant.
Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.
Petitioner Derrick Rumunda Moody seeks a writ of prohibition asserting that the trial court has lost jurisdiction to try him on delivery of a controlled substance because he was not brought to trial within the twelve month period under Ark. R.Crim. P. 28. The criminal information was filed in this case on September 23, 1998. Moody filed his motion to dismiss on May 2, 2001. We hold that the periods of delay attributable to Moody, properly excluded between September 23, 1998 and May 2, 2002, fail to reduce the time within which he was to be brought to trial to twelve months. The petition is granted. Jurisdiction of this petition is proper in this court pursuant to Ark. Sup.Ct. R. 1-2(a)(3).
The criminal information was filed against Moody on September 23, 1998. Moody was arrested on September 29, 1998. He appeared at a hearing on September 30th. At the next docket call, Moody was not present because he was incarcerated elsewhere. Thereafter, it appears Moody was in the Department of Corrections and then was free and working in Hot Springs. Later, Moody was returned to Arkansas County. His case was first set for trial on January 14, 1999, but was reset for trial eighteen times. He now alleges the trial court has lost jurisdiction to try him. We agree.
We first note that Moody has named the individual judge as the respondent to his petition. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). The petition will therefore be treated as one against the circuit court. Pike, supra.
Moody seeks a writ to prohibit the circuit court from proceeding against him on the criminal charges. A writ of prohibition stops the trial court from proceeding. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000); Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255 (1998) (citing West Memphis Sch. Dist. No. 4 v. Circuit Court of Crittenden County, 316 Ark. 290, 871 S.W.2d 368 (1994)). The writ will not be granted unless it is clearly warranted. Ibsen, supra; Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993).
Under Ark. R.Crim. P. 28.1, an accused must be brought to trial within twelve months unless necessary delay occurs as authorized under Ark. R.Crim. P. 28.3. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). This means that a defendant must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R.Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R.Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.
Moody first moved for a dismissal under speedy trial Rule 28.1 by a motion on May 2, 2001. The motion asserted that Moody was to be tried outside the twelve-month period in violation of Ark. R.Crim. P. 28. From the docket, it appears the motion to dismiss was set for hearing on October 8, 2001, then continued to October 22, 2001. From a motion to continue the hearing, it appears that the hearing on the motion was continued to October 29, 2001, although nothing is noted in the record or docket as occurring on that date. On October 29, 2001, a hearing on the motion was held, and Moody's counsel asserted trial was set outside the allowed twelve month period. The State then sought and was given an opportunity to review the transcript and docket. The hearing ended without any action on the motion by the court. On November 15, 2001, Moody filed a renewed motion to dismiss asserting he was to be tried in violation of Rule 28. On November 29, 2001, an order was filed on the motion which states simply, "The Defendant's Motion to Dismiss is denied."
It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Eubanks t". Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998); Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996). Once a defendant shows that his trial will take place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (July 5, 2002); Ferguson, supra; Gooden, supra.
We note at the outset that the State argues that there is no issue as to any period excluded by the trial court because Moody failed to object and obtain a ruling by the trial court on the disputed excluded periods. The law on this issue is found in Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998), wherein this court stated:
It is true, that in criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Moreover, it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Because the trial court never ruled on an objection to the exclusion of this time period, the argument is not properly before us on appeal.
Strickland, 331 Ark. at 405, 962 S.W.2d 769. The record and the docket fail to reveal that any excluded period was objected to at the time it was noted in the record or on the docket. However, in his motion to dismiss, Moody asserted that his incarceration between September 3, 1998 and September 5, 1999, was to be counted against the running of speedy trial, and that there was no excluded period during the following times:
I. 9/23/98 through 1/14/99 113 days
II. 3/11/99 through 8/16/99 158 days
III. 11/6/00 through 1/29/01 84 days
IV. 3/30/01 through 5/2/01 34 days
________
389 days
Naturally there is no issue as to Moody's incarceration between September 3, 1998 to September 23, 1998, because the criminal information was not filed until September 23, 1998. Pursuant to Strickland, Moody did raise the issue of the above noted periods before the trial court. The motion was denied.
When we analyze a speedy-trial issue, we add the number of excluded days under Ark. R.Crim. P. 28.3 and apply those days to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant. To carry out this analysis, we must determine the number of days between the date when time commences to run against speedy trial under Rule 28 and the date on which the defendant alleges he was to be brought to trial in violation of the rule.
Moody was arrested after the criminal information was filed in this case. Therefore, time commences to run from the date the criminal information was filed. Ark. R.Crim. P. 28.2. The criminal information was filed on September 23, 1998. Moody filed his motion to dismiss on May 2, 2001, alleging he was about to be brought to trial in violation of his right to a speedy trial. Thus, we must determine the number of days that may be excluded, if any, between September 23, 1998 and May 2, 2001. From September 23, 1998, to the end of that year amounts to ninety-nine days. There were 365 days in 1999 and 366 days in 2000. From January 1, 2001, to May 2, 2001, amounts to 122 days. The sum of these four numbers is 962 days.
Moody has thus demonstrated that as of the date he filed his motion to dismiss, he was 597 days beyond the twelve-month limitation under Rule 28.1. He has thus shown a prima facie case of a speedy-trial violation, and the burden shifts to the State to show that the 597 days of delay were caused by the defendant or otherwise justified. Ibsen, supra. We must then determine whether the excluded periods allowed under Rule 28.3 exceed this number and thereby allow Moody to yet be brought to trial within twelve months.
The parties agree that the period between September 23, 1998 and January 14, 1999, the first trial date, is not an excluded period. Therefore, during this period, time was running on speedy trial.
The next period we consider is from the trial date of January 14, 1999, to the next trial date of March 11, 1999. This period resulted from a continuance of trial dates requested by Moody. Moody agrees that this period is to be excluded. This is a period of fifty-six days. When we subtract this sum from 597, we are left with 541 days.
We next consider the period from March 11, 1999 to the next trial date of May 20, 1999. The trial was continued to May 20, 1999 due to "older case...
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