State v. Olsen, Cr. N

• Decision Date: 30 November 1995
• Docket Number: Cr. N
• Citation: 540 N.W.2d 149
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Walter OLSEN III, Defendant and Appellant. o. 950094.
• Court: North Dakota Supreme Court

Page 149

540 N.W.2d 149

STATE of North Dakota, Plaintiff and Appellee, v. Walter OLSEN III, Defendant and Appellant.

Cr. No. 950094.

Supreme Court of North Dakota.

Nov. 30, 1995.

Brian David Grosinger, Assistant State's Attorney, Mandan, for plaintiff and appellee.

Rodney Karl Feldner, Mandan, for defendant and appellant.

VANDE WALLE, Chief Justice.

Walter Olsen, III, appealed from a judgment of conviction for theft of property. We hold that Olsen was denied his statutory right to a speedy trial. We reverse the judgment and remand for a dismissal of the charges with prejudice.

Olsen was charged with stealing a motor vehicle in Mandan on March 16, 1994, a class C felony in violation of Section 12.1-23-05, N.D.C.C. He entered a plea of not guilty. He then filed a motion to suppress evidence on the ground that his Fourth Amendment rights against unreasonable search and seizure were violated during the police investigation of the theft. The motion to suppress was denied.

By the time these charges were filed against Olsen he was incarcerated in the state penitentiary for an unrelated conviction. Under the Uniform Mandatory Disposition of Detainers Act, Ch. 29-32, N.D.C.C., he filed a request for speedy trial, which was received and filed by the court on September 30, 1994. Section 29-33-03, N.D.C.C., requires pending charges against an incarcerated prisoner be tried within 90 days of the court's receipt of a request for speedy trial or be dismissed with prejudice. However, the statute also allows the court, in its discretion, to grant the State a continuance of the trial for good cause shown. Id.; State v. Kania, 341 N.W.2d 361, 365 (N.D.1983). Before the end of 90 days after the request for a speedy trial, the State requested and was granted a continuance for 60 days from the date of the entry of the order. Thereafter, Olsen entered a conditional plea of guilty, under Rule 11(a)(2), N.D.R.Crim.P., reserving his right to appeal the speedy trial issue and the court's denial of the motion to suppress evidence as allowed by that rule.

On appeal Olsen argues that the trial court abused its discretion in granting the 60-day continuance because the State did not show good cause for the continuance. We do not decide that issue because the trial was not set to be held within the 60-day period and that is dispositive.

The relevant statute is Section 29-33-03, N.D.C.C.:

"29-33-03. When charges brought to trial--Dismissal. 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 must 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 any longer has jurisdiction thereof, nor may the untried indictment, information, or complaint be of any further force or effect, and the court shall dismiss it with prejudice."

The trial court held a hearing within the 90-day period on the State's request for a continuance. The court granted the State's request in a written order:

"The motion is granted and the state is allowed 60 days from the date of the entry of this Order in which to bring the prisoner to trial.

"Issued this 22nd day of December, 1994."

The order was issued and signed by the court on December 22, 1994, but it was not stamped by the clerk until December 27, 1994. The trial court administrator originally scheduled the trial for March 23, 1995, well beyond the 60-day continuance. The trial was then rescheduled for February 23, 1995, and on that date Olsen entered his conditional guilty plea reserving this issue for appeal. The rescheduled trial date of February 23, 1995 fell 63 days after December 22, 1994, the day the court issued its order granting the continuance. Consequently, the trial date was within 60 days after the order was filed stamped by the clerk of court on December 27, 1994, but not within 60 days after the order was signed by the court on December 22, 1994.

Absent a...