Saffold v. State

• Decision Date: 08 December 1987
• Docket Number: 4 Div. 866
• Citation: 521 So.2d 1368
• Parties: Kevin SAFFOLD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1368

521 So.2d 1368

Kevin SAFFOLD v. STATE.

4 Div. 866.

Court of Criminal Appeals of Alabama.

Dec. 8, 1987.

Rehearing Denied Jan. 26, 1988.

Certiorari Denied April 1, 1988

Alabama Supreme Court 87-563.

Phyllis J. Logsdon, Dothan, for appellant.

Don Siegelman, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Kevin Saffold, was indicted and convicted for possession of cocaine. He was sentenced to ten years' imprisonment.

Wesley Woodham, an investigator in the narcotics division of the City of Dothan Police Department, received information on June 9, 1986, at approximately 6:00 p.m., that a drug transaction was being conducted from an automobile. Woodham was provided a description of the car and a description of the driver of the car.

Approximately an hour later, Woodham saw the car, ran a license check on it and found that it was registered in appellant's mother's name. Woodham followed the car into the parking lot of a housing project. The driver of the car stopped the car and stepped out of it. Woodham placed his blue light on the cash, flashed his badge out of the window of the car and shouted to the driver that he wanted to speak to him. In response to Woodham's shout, the driver turned to face him. Woodham recognized the driver to be the appellant, Kevin Saffold. Upon seeing Woodham, appellant reached inside his car, pulled out a revolver and fled.

After calling for and receiving assistance, Woodham secured the area and approached appellant's car. The engine was running and the car's door was open. Looking inside the car, Woodham saw an open black bag on the passenger's seat. Upon examining the bag, Woodham found a set of scales, a small clear plastic container that contained a white powdery substance and a pair of hemostat scissors. The white powdery substance was later determined to be cocaine.

I

Appellant initially contends his indictment should have been dismissed because the state failed to bring him to trial within the 180-day period prescribed under Article III(a) of the Uniform Mandatory Disposition of Detainers Act, § 15-9-81, Code of Alabama 1975, which provides, in pertinent part, the following:

"Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance...."

A review of the record discloses the following chronology of events relevant to appellant's contention:

June 10, 1986--Complaint filed against appellant, charging him with possession of cocaine.

August 20, 1986--Pursuant to a detainer placed on appellant by the Dothan Police Department, Texas Department of Corrections notified Dothan Police Department that appellant was imprisoned in a Texas penitentiary.

August 25, 1986--Appellant notified the Texas authorities of his Request for Disposition of Indictments, Informations or Complaints.

September 2, 1986--Texas Department of Corrections forwarded, to the District Court Clerk of Houston County, Alabama, by certified mail, appellant's Request for Disposition of Indictments, Informations or Complaints; a Certificate of Inmate Status; and an Offer to Deliver Temporary Custody.

September 6, 1986--District Court Clerk of Houston County received appellant's notices.

September 8, 1986--Houston County district attorney's office received appellant's notices. This triggered the running of the 180-day period. State v. Braswell, 194 Conn. 297, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112 (1985) (180-day time limit begins to run when prisoner's request is received by the prosecuting authorities in the state which filed the detainer).

November 12, 1986--Appellant was returned to Houston County.

November 14, 1986--Honorable James Ward was appointed to represent appellant.

November 18, 1986--Appellant filed a request for a preliminary hearing.

November 21, 1986--A preliminary hearing was held.

December 1, 1986--Honorable James Ward moved to withdraw as appellant's counsel.

December 12, 1986--Appellant was indicted by the December Term of the Houston County Grand Jury.

January 5, 1987--Honorable Henry Binford was appointed to represent appellant, and appellant entered a plea of not guilty. His case was set for trial during the March 16, 1987 term of court.

February 10, 1987--Appellant filed a motion for speedy trial. Court ordered clerk to set the trial for the next criminal jury docket and to notify the parties of the trial date. In response to other motions filed, the court ordered that, within 14 days, the prosecution was to give appellant a sample of the alleged contraband and that evidence which was discoverable.

February 17, 1987--Honorable Henry Binford's motion to withdraw filed on this date was granted, and Honorable Phyllis Logsdon was appointed to represent appellant. Binford's reason for withdrawing was that he had been employed as a full-time assistant district attorney.

March 6, 1987--Appellant filed a motion to suppress all evidence seized as a result of the search of the vehicle.

March 7, 1987 (Saturday)--This date was the 180th day of the statutory period.

March 17, 1987--The trial court ordered that appellant's motion to suppress was to be heard on trial day.

March 19, 1987--Case called for trial. Appellant filed a motion to dismiss the indictment for failure of the state to prosecute within the 180-day time limit. Court denied appellant's motion. Appellant was tried and convicted by a jury for possession of cocaine.

The total period of time from September 8, 1986, to March 19, 1987, was 192 days, 12 days beyond the prescribed 180-day time limit. Appellant argues that this 12-day delay is ground for dismissal because the disposition of the case was not timely in accordance with the mandatory provisions of Article III(a).

The discussion between the trial court and counsel on appellant's motion to dismiss revealed that from two days after appellant was returned to Alabama on November 12, 1986, until he was tried on March 19, 1987, he was appointed three different attorneys. The following discussion occurred during the hearing:

"THE COURT: He was appointed a lawyer on November 14th, Mr. James Ward, by Judge McFatter.

"His lawyer, James A. Ward, III, requested a preliminary hearing for him. That request was in writing and was filed into the Circuit Clerk's office on November 18, 1986.

"Then a motion to withdraw as counsel was filed on December 1, 1986. It says in words and substance that the defendant appears to have no confidence in his appointed counsel, and his attempts to instruct counsel on how his case should be tried, and the attorney cannot represent defendant adequately if he cannot practice freely without instructions from the defendant.

"That irreconcilable differences have developed between the defendant and his attorney, and that his attorney can no longer represent the defendant in the case.

"...

"Henry Binford was his lawyer and made some motions as late as February of '87--motion for a speedy trial, motion for a scientific examination on alleged drugs, and motion for bail reduction, motion for discovery, and then a motion to withdraw, and it was granted by Judge White.

"Then you were appointed on February 17th?

"MS. LOGSDON: Yes, sir.

"...

"THE COURT: I could read into this that the Court has exercised impliedly its discretion to grant necessary and reasonable continuances of the matter in light of the fact that the Court did not terminate the proceedings at the end of the 180-day period. So, Judge McFatter's orders may be construed as reasonable continuances.

"Then, we have had numerous motions made.

"So, I am going to deny the motion to dismiss."

The 180-day period may be tolled or otherwise exceeded for three reasons: (1) to allow the trial court to grant any necessary and reasonable continuance for good cause shown in open court with the defendant or his counsel present, § 15-9-81, Art. III(a); (2) for as long as the defendant is unable to stand trial, § 15-9-81, Art. VI(a); or (3) for any period of delay in bringing the defendant to trial caused by the defendant's request or to accomodate the defendant, People v. Grubbs, 39 Colo.App. 436, 570 P.2d 1299 (1977); State v. McGann, 126 N.H. 316, 493 A.2d 452 (1985). "The fact that a delay is not called a 'continuance' is not controlling as to its character as a continuance, nor is the reasonableness of the period of delay limited to the delay requested by a party." 493 A.2d at 456. See also State v. Burrus, 151 Ariz. 572, 729 P.2d 926 (Ct.App.), aff'd in pertinent part, 151 Ariz. 581, 729 P.2d 735 (Sup.Ct.1986).

In this instance, the court was authorized to find that the 180-day time limit was tolled by the delays occasioned by appellant's pretrial motions. See Cobb v. State, 244 Ga. 34, 260 S.E.2d 60 (1979). When the court takes a motion filed by the defendant under advisement, a continuance is implicitly granted and the period tolled for a reasonable time until a ruling is made. United States v. Hines, 717 F.2d 1481 (4th Cir.1983); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982). The record before us supports the finding that various delays were consented to by appellant as an accomodation to him and, thus, the 180-day time period was tolled. For example,...