State v. Avriett
| Decision Date | 07 October 1975 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 540 P.2d 1282,25 Ariz.App. 63 |
| Parties | STATE of Arizona, Appellee, v. Marvin Ray AVRIETT, Appellant. 814. |
| Court | Arizona Court of Appeals |
The issue in this case involves the question whether the time limits of Rule 8, Rules of Criminal Procedure, 17 A.R.S., are meant to start anew upon the refiling by the county attorney of a previously dismissed criminal action when the prior dismissal was without prejudice. Appellant has raised no federal constitutional speedy trial issues in this appeal, therefore the result this Court reaches is based on our interpretation of the Arizona Rules of Criminal Procedure. See State ex rel. Berger v. Superior Court, 111 Ariz. 335, 529 P.2d 686 (1974).
On December 23, 1973, appellant was arrested and charged with robbery under Maricopa County Superior Court Cause No. CR-79292. After several motions were made in the action, trial was set for April 17, 1974. On motion of appellant on April 17, 1974, the case was dismissed by the trial court with leave for the state to refile on the basis that 93 days had passed since the arraignment. The dismissal in this case was the result of a three-day violation of this rule.
After the first dismissal, the County Attorney elected to bring the charges before the grand jury which returned an indictment on April 23, 1974--six days after the dismissal. Trial then began in Maricopa County Superior Court Cause No. CR-81141 on June 11, 1974, and after an initial mistrial, a verdict of guilty was returned on June 25, 1974.
The trial court apparently allowed the original case to be refiled because there was no showing of prejudice to the appellant by the three-day delay. Appellant would apply the 150-day time requirements of Rule 8.2(a) from the initial appearance on Cause No. CR-79292 through the dismissal of that case and until the trial on Cause No. CR-81141 which resulted from the subsequent grand jury indictment after the original dismissal. We hold that this would be contrary to the obvious intent of Rule 8.6 as interpreted in State ex rel. Berger v. Superior Court, supra. A dismissal without prejudice to the County Attorney to refile the charges would...
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State v. Rose
...that, in some cases, it would be pointless to refile because the time limits would already be close to expiration. State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975). The record reveals no bad faith on the part of the prosecution or prejudice to the defendant that would mandate measuri......
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State v. Taylor
...finding of probable cause, a new indictment and arraignment give rise to a new time period under Rule 8. Likewise in State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975) the court held that a refiling after a dismissal for violation of Rule 8, starts the time period to run anew. Therefor......
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State v. Mankel
...as technical error not requiring dismissal at all. See, State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976); State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975); State v. Armenta, 25 Ariz.App. 62, 540 P.2d 1281 These cases, coupled with the fact that appellant did not claim that he suf......
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State v. Chavez
...meaning if it were not implied that the time limits of Rule 8 would begin anew upon refiling the charges." State v. Avriett, 25 Ariz. App. 63, 64, 540 P.2d 1282, 1283 (1975). It is irrelevant that the State had previously dismissed the case two times so long as Appellant was tried within 18......