State v. Carlson

• Decision Date: 11 October 1977
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Stanley David CARLSON, Defendant and Appellant. o. 589.
• Court: North Dakota Supreme Court

Page 253

258 N.W.2d 253

STATE of North Dakota, Plaintiff and Appellee, v. Stanley David CARLSON, Defendant and Appellant.

Cr. No. 589.

Supreme Court of North Dakota.

Oct. 11, 1977.

Rehearing Denied Oct. 26, 1977.

Keith A. Wolberg, Bismarck, for defendant and appellant.

Rolf P. Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee.

SAND, Justice.

The defendant, Stanley David Carlson, appealed from a Burleigh County judgment of conviction of robbery and from an order before trial denying his motion to dismiss the charge against him. He contended that the Uniform Mandatory Disposition of Detainers Act supplements the constitutional right to a speedy trial and that his rights under either or both have been denied by the trial court.

To determine the merits of defendant's appeal, a chronological examination of the pertinent proceedings up to the trial and conviction will be necessary.

Early in 1976, the defendant pleaded guilty to the crime of robbery in Ward County and was sentenced to one year at the State Farm, less time served in the Ward County jail.

While the defendant was serving his sentence at the State Farm, detainers for the charge of robbery were lodged against him by Burke and McHenry Counties, as well as a detainer for robbery from Burleigh County, after which the defendant was removed to the North Dakota State Penitentiary.

The Burleigh County detainer, which is the one involved in this appeal, disclosed that the defendant, in a criminal complaint dated 24 February 1976, was charged with committing armed robbery at the Bismarck Century Discount store. ¹

The warden informed the defendant of the detainers. The defendant then completed "Inmate's Request for Disposition of Complaint" dated 21 May 1976, which was filed with the clerk of the county court on 2 June 1976. In accordance with Chapter 29-33 of the North Dakota Century Code, the warden completed the certificate of inmate's status and the offer to deliver temporary custody of the defendant. Both documents were dated 26 May 1976, and were filed 2 June 1976, with the clerk of the county court of Burleigh County. The defendant at this time had court-appointed counsel number one.

The defendant waived preliminary hearing and was bound over to Burleigh County district court on 14 June 1976. At his arraignment in district court, on 23 June 1976, he deferred the entry of a plea and requested a two-week continuance, which was granted on the condition "that you (defendant) will not assert the speedy trial right summarily upon the State and force it to trial unreasonably."

The State took notice of this delay and sought assurance from the court that it would not be considered prejudicial against the State; whereupon the defendant's counsel responded by stating that "This delay is not going to be a request for speedy trial."

On 9 July 1976, the date to which the arraignment was continued, the defendant entered a plea of not guilty. At that time the court directed "counsel for both the State and the defendant to arrange with the Court Administrator to have this matter set down for trial at the earliest convenient time." The Court Administrator, after consultation with the attorneys of record, set the trial for 14 October 1976.

Nevertheless, the defendant, aided by an inmate of the Penitentiary, but without the aid of his court-appointed counsel, filed a habeas corpus petition in the Burleigh County district court alleging a violation of his constitutional right to a speedy trial and noting that his counsel had "refused to protect petitioner's constitutional rights where the authorities of Burleigh, Burke, and McHenry Counties have failed to bring petitioner before the Court for trial within the 90 day period under Section 29-33-03, North Dakota Century Code." The habeas corpus petition was heard on 13 October 1976, at which time the State moved to dismiss the petition.

The affidavit of the assistant state's attorney of Burleigh County, dated 13 October 1976, filed in support of the State's motion to dismiss the defendant's habeas corpus petition, disclosed that defendant's counsel informed him that he would be unable to try the case during August and that "he wished to set a time in September or October, 1976 for the trial."

The affidavit further stated that defendant's counsel had informed him and the court administrator that he could not try the case during the first week of August because of a personal matter and his schedule did not permit another trial during August. He also stated that during the period of August 26 to September 9 a number of telephone conversations were held between the court administrator, defendant's counsel, and the state's attorney's office, to find a date which would not create an impossible conflict; subsequently defendant's counsel informed the state's attorney that he would be unavailable on September 15, 17, 23, and 24, and during the week of October 25, 1976; and the trial was ultimately set for 14 October 1976, after "comparing the calendars of defendant's counsel, the court, and the state's attorney's office."

Immediately after the habeas corpus hearing on 13 October 1976, the court dismissed the petition, allowed the court-appointed counsel to withdraw from the case, and continued the trial, stating:

"The continuance is brought about by the petitioner's own shortcomings, and any delay which is caused now, because of your challenge to jurisdiction, if you wish to proceed that way, or because you feel you have inadequate counsel, is your own delay. The State didn't ask for this, and it will have no bearing on any possible subsequent motion under speedy trial provisions."

The defendant also filed a habeas corpus petition with the North Dakota Supreme Court, which the Court denied on 20 October 1976.

Following the withdrawal of defendant's court-appointed counsel, the district court appointed counsel number two for the defendant. Defendant later made a motion to relieve his second court-appointed counsel, which was heard and granted by the district court on 8 November 1976.

Counsel number three for the defendant was appointed, who, on 23 November 1976, made and filed a motion to dismiss the Burleigh County robbery complaint on the ground that defendant's constitutional right to a speedy trial had been violated and that the court was without jurisdiction to try him because he was not tried within the ninety-day period set out in the Uniform Mandatory Disposition of Detainers Act, Chapter 29-33, NDCC.

Defendant's first court-appointed counsel filed an affidavit entitled "In Support of Motion to Dismiss," dated 23 November 1976. It disclosed essentially the same facts as the affidavit filed by the assistant state's attorney resisting the writ of habeas corpus and later used to resist defendant's motion to dismiss: That defendant's counsel informed the court administrator that he was unable to try the case during two weeks in August because of trials scheduled in Bismarck and Fargo; that the trial in Fargo actually took two weeks; that he was unavailable during the week of 6 September 1976 because of a personal matter; and that he had informed the court administrator's office that he would be unavailable on September 15, 17, 23, or 24.

The district court, on 1 December 1976, denied defendant's motion to dismiss, finding "that those delays or continuances which caused the information not to be brought to trial within ninety days were stipulated to by the parties by inference and agreement."

The defendant was then tried to the court without a jury on 8 December 1976 for the Century Discount store robbery, and was found guilty of the charge. He was sentenced to ten years in the State Penitentiary, suspended in the entirety upon his meeting certain conditions for a five-year period.

On 26 January 1977 the defendant appealed from the judgment of conviction and the order of the district court denying his motion to dismiss the complaint.

The defendant basically contends that the district court was without jurisdiction to try him on the robbery charge because he had complied with the requirements of Chapter 29-33, NDCC, requesting disposition of the detainer lodged against him, the State had not formally obtained a continuance, and more than ninety days had passed since the request for disposition of the detainer.

The defendant's argument and approach can be characterized as treating Chapter 29-33, NDCC, strictly as a statute of limitations.

The pertinent section of the Uniform Mandatory Disposition of Detainers Act is § 29-33-03, NDCC:

"Within ninety days after the receipt of the request and certificate by the court and prosecuting official or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information, or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information, or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information, or complaint be of any further force or effect, and the court shall dismiss it with prejudice."

A careful analysis of this section discloses that there are several conditions and requirements involved: (1) the request must be made to both the court in which the charge is filed and to the prosecuting official; (2) the court, for good cause, in open court may grant additional time in the presence of defendant's counsel or the defendant being present personally; (3) the parties may stipulate for a continuance; and (4) a continuance may also be granted by the court with notice to the attorney of record and an opportunity for him to be heard.

Thus, on careful analysis of the pertinent...