Snow v. Superior Court in and for County of Maricopa
| Decision Date | 06 June 1995 |
| Docket Number | CA-SA,No. 1,1 |
| Parties | Kyle Douglas SNOW, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Barbara M. Jarrett, a judge thereof, Respondent Judge, Richard ROMLEY, State of Arizona, ex rel. The Maricopa County Attorney's Office, Real Party in Interest. 95-0102. |
| Court | Arizona Court of Appeals |
Petitioner Kyle Douglas Snow filed a petition for special action alleging violations of his right to a speedy trial and the constitutional prohibition against double jeopardy. By order we previously accepted jurisdiction with an opinion to follow. This is that opinion.
In June 1992, Petitioner was placed on probation for solicitation to sell narcotic drugs. Several months later, he secured employment on a fishing boat in the Bering Sea. Petitioner requested permission from his probation officer to live in Seattle, Washington, where he would work at sea thirty to forty-five days at a time. The probation department granted this request and Petitioner was preparing to leave Arizona in January 1993.
In December 1992, Petitioner was stopped on suspicion that he was driving under the influence. After he failed duplicate breath tests, his driver's license was suspended for ninety days and he was arrested for aggravated driving under the influence. When Petitioner was released from jail, he followed the instructions on his ticket and contacted the justice court. He learned that the charge had been scratched and that he did not need to appear in court. Shortly thereafter, Petitioner moved to Seattle.
On February 16, 1993, Petitioner was indicted for aggravated driving under the influence. A summons was delivered by certified mail to the address he listed as his residence in the questionnaire he filled out at the time of his arrest. A Hazel Knopek, who Petitioner named in the same questionnaire as his nearest relative/friend, signed the return receipt. Nevertheless, he failed to appear for his arraignment on March 3, 1993, and a bench warrant was issued.
At some time, Petitioner had given his forwarding address to the United States Post Office. In addition, he remained in constant contact with his probation officer while in Seattle.
In May 1994, the probation officer learned from a records check that Petitioner had been indicted for aggravated driving under the influence in February 1993. The probation officer notified Petitioner about this charge and Petitioner, after contacting a public defender, returned to Arizona, surrendered to authorities, and was arraigned on July 8, 1994.
Petitioner moved to dismiss the complaint against him, arguing: (1) That his right to a speedy trial was violated; and (2) that pursuant to Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the constitutional protection against double jeopardy prohibited criminal prosecution for aggravated driving under the influence because his driver's license already had been suspended for the December 1992 incident. After the trial court denied the motion, Petitioner filed the present special action raising the same arguments.
Generally, this court does not accept special action review of a denial of a motion to dismiss. Humble v. Superior Court, 179 Ariz. 409, 411, 880 P.2d 629, 631 (App.1993). Special action review has been granted, however, where a party raises an issue of first impression which is a matter of statewide importance that is likely to recur and which, in fact, has recurred in subsequent cases. State ex rel. Bowers v. Superior Court, 173 Ariz. 34, 38, 839 P.2d 454, 458 (App.1992). We therefore accepted jurisdiction.
When considering Petitioner's motion to dismiss, the trial court stated that Rule 8.4(a), Arizona Rules of Criminal Procedure ("Rule 8.4(a)"), did not require the state to exercise due diligence to locate Petitioner because he was out of Arizona. The court therefore denied Petitioner's motion, concluding that the period Petitioner was out of Arizona was automatically excluded time.
Petitioner first asserts that the state must exercise due diligence to locate a defendant, even when such defendant is out of Arizona. He then argues that because the state failed to exercise due diligence in the present case, the time he was out of Arizona is not excluded time. Accordingly, Petitioner concludes that his right to a speedy trial pursuant to Rule 8.2(a), Arizona Rules of Criminal Procedure ("Rule 8.2(a)"), was violated, thereby entitling him to dismissal with prejudice.
Although we agree with Petitioner that his right to a speedy trial was violated pursuant to Rule 8.2(a), we disagree that the appropriate remedy pursuant to Rule 8.6, Arizona Rules of Criminal Procedure ("Rule 8.6"), is dismissal with prejudice.
Rule 8.2(a) provides:
Every person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within 150 days of the arrest or service or summons under Rule 3.1 except for those excluded periods set forth in Rule 8.4 below.
Rule 8.4(a) provides:
The following periods shall be excluded from the computation of the time limits set forth in Rules 8.2 and 8.3: ... [d]elays occasioned by or on behalf of the defendant, including, but not limited to, delays caused by ... the defendant's absence or incompetence, or his or her inability to be arrested or taken into custody in Arizona.
To resolve whether time was properly excluded pursuant to Rule 8.4(a) in the present case, we first must examine whether the state is required to exercise due diligence when a defendant is out of Arizona.
In the present case, the trial court noted that it was not necessary for the state to exercise due diligence because Petitioner was out of Arizona. Petitioner argues that the court's premise is erroneous and we agree.
In Duron v. Fleischman, 156 Ariz. 189, 192, 751 P.2d 39, 42 (App.1988), Division Two of this court established that the state must exercise due diligence to locate a defendant when delay is caused by such defendant's "inability to be arrested or taken into custody in Arizona." Citing Duron, courts have conducted a due diligence inquiry in cases where the defendants were in Arizona but were unable to be arrested or taken into custody. See Humble, 179 Ariz at 412, 880 P.2d at 632; State v. Armstrong, 160 Ariz. 159, 160, 771 P.2d 889, 890 (App.1989); State v. Snow, 157 Ariz. 597, 598, 760 P.2d 597, 598 (App.1988).
An exception to the general requirement that the state exercise due diligence was established in State v. Miller, 161 Ariz. 468, 778 P.2d 1364 (App.1989). There, the defendant "voluntarily absconded from the jurisdiction knowing that a trial was pending [and scheduled] in justice court...." Id. at 470, 778 P.2d at 1366. Division Two of this court distinguished Duron and refused to examine whether the state exercised due diligence because the defendant "cannot be heard to complain that the state did not act more expeditiously to find him." Id.
Here, we are asked to reconcile Duron and Miller and determine whether the state must exercise due diligence to locate a defendant who is outside of Arizona, but who is not attempting to avoid apprehension or prosecution. The state urges us to accept its interpretation of these cases--namely that it must exercise due diligence only when a defendant is in Arizona. We reject this interpretation for two reasons.
First, the American Bar Association ("ABA") standard upon which Rule 8.4(a) was patterned envisions a due diligence inquiry, either expressly or by implication, except when a defendant is attempting to avoid apprehension or prosecution. 1 Second, as a We therefore hold that for time to be excluded pursuant to Rule 8.4(a) because of a defendant's absence from Arizona, the state must show either that it has exercised due diligence to locate the defendant or that the defendant has attempted to avoid apprehension or prosecution.
[183 Ariz. 324] policy matter, we do not believe that the state's failure to exercise due diligence should be excused by the mere fortuity of a defendant's innocent absence from Arizona. Although overlooking the state's failure to exercise due diligence is sound policy when a defendant attempts to avoid apprehension or prosecution, the same cannot be said when a defendant is innocently out of state and cannot be arrested or taken into custody.
In the present case, Petitioner left Arizona to take a job that he had secured months earlier. At the time, he thought the charges against him had been scratched. The state presented no evidence that Petitioner left Arizona to avoid apprehension or prosecution, and we have found none. Accordingly, to exclude time pursuant to Rule 8.4(a), the state must have exercised due diligence to locate Petitioner.
Due diligence has been described as follows:
Although the question of due diligence necessarily turns upon the details of each case, the standard is constant: whether the state took reasonable steps to locate the accused based upon all of the information that it possessed. Characteristic of cases of inadequate diligence is the state's failure to pursue significant leads.
Humble, 179 Ariz. at 413, 880 P.2d at 633 (quoting Armstrong, 160 Ariz. at 160, 771 P.2d at 890).
Here, the state contends that the trial court...
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