State v. Tucker, 5270

• Decision Date: 28 July 1982
• Docket Number: No. 5270,5270
• Citation: State v. Tucker, 133 Ariz. 304, 651 P.2d 359 (Ariz. 1982)
• Parties: STATE of Arizona, Appellee, v. Arnold Ray TUCKER, Appellant.
• Court: Arizona Supreme Court

Page 359

651 P.2d 359

133 Ariz. 304

STATE of Arizona, Appellee, v.Arnold Ray TUCKER, Appellant.

No. 5270.

Supreme Court of Arizona In Banc.

July 28, 1982.

Rehearing Denied Sept. 14, 1982.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Robert S. Golden, Asst. Attys.Gen., Phoenix, for appellee.

Stephen J. Rouff, Yuma, for appellant.

GORDON, Vice Chief Justice:

AppellantArnold Ray Tucker was convicted by a Yuma County jury of one count of first degree murder, one count of armed robbery, and two counts of armed kidnapping--all under our former criminal code.The trial court sentenced him to life imprisonment for the murder and to three concurrent terms of 10 to 30 years on the other charges.Appellant then appealed to this Court.We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3)andA.R.S. § 13-4031 ((formerly A.R.S. § 13-1711).

Appellant raises a number of issues.We need only consider his speedy trial claim.The convictions are reversed and the charges are dismissed with prejudice.

Appellant was initially tried in 1976.The evidence showed that appellant had the victims come to his residence so that they could buy marijuana from appellant's cofelons.Rather than complete the sale, appellant and his cofelons had planned to rob the victims.After introducing the victims to the cofelons, appellant apparently left the scene.Appellant's cofelons then robbed and kidnapped both victims and drove away from the residence.During the flight from the robbery scene, one victim was killed and the other narrowly escaped.Although there was evidence that appellant had no knowledge that a murder would occur, he was equally culpable with the other cofelons of felony murder (former A.R.S. § 13-452) because he aided and abetted (former A.R.S. §§ 13-139, -140) the robbery.

Appellant's original convictions were affirmed by this Court with two justices dissenting (one joining the dissent only in part).State v. Tucker, 118 Ariz. 76, 574 P.2d 1295(1978), cert. denied, 439 U.S. 846, 99 S.Ct. 144, 58 L.Ed.2d 147.Appellant thereafter sought habeas corpus relief in the federal courts.The Federal District Court of Arizona, adopting the dissenting opinion in the state case, granted the requested habeas corpus relief.Tucker v. Raines, No. Civ. 79-455 PHX-WPC(D.Ariz., order filed July 16, 1979).The district court ordered the state to retry appellant within 60 days or else release him from custody pending retrial.The order was stayed pending an appeal to the Ninth Circuit.

On appeal, the Ninth Circuit affirmed the district court.Tucker v. Raines, 626 F.2d 867(9th Cir., 1980).When the Ninth Circuit's opinion was filed, the clerk of the court sent the following notice to defense counsel and the Arizona Attorney General(who was representing the state in the federal court proceedings):

"NOTICE OF ENTRY OF JUDGMENT

"Judgment was entered in this case as of the file stamp date on the attached decision of the court.

* * *

* * *

"Issuance of the Mandate (FRAP 41)

"The mandate is the certified copy of the judgment.The mandate is scheduled to be issued 21 days from the entry of judgment unless the court directs otherwise.A timely petition for rehearing will stay the issuance of the mandate.If the petition is denied, the mandate will be entered 7 days later. * * * "

(Emphasis in original.)The state took no further action, and the judgment/mandate was entered on August 18, 1980 per the rule explained in the notice.

When defense counsel received notice of the Ninth Circuit's decision, he wrote a letter to the assistant attorney general handling the case and demanded a new trial or release of his client as previously ordered by the district court.Defense counsel sent a copy of this letter to the Yuma County Attorney.Believing that a separate document entitled "mandate" would be, but had not yet, been filed by the Ninth Circuit, the assistant attorney general advised the Yuma County Attorney to take no action on appellant's demand until a mandate was received.The state never sent appellant a response to the letter.

When the instant case returned to the Yuma County Superior Court, the state had 60 days from the entry of the judgment/mandate to retry appellant or release him by virtue of the federal district court's order.Further, appellant argued that Ariz.R.Crim.P. 8.2(d) required a retrial within 60 days of the date when the state received the Ninth Circuit's judgment/mandate--August 26, 1980.Thus, appellant's trial should have commenced or he should have been released by October 17, 1980 under the federal order.Rule 8.2(d), if applicable, required a trial by October 27, 1980.¹The state made no attempt to schedule appellant's trial during this interval until appellant filed in state superior court a motion to dismissthe prosecution after the 60 days of the federal order expired.At the same time, appellant moved in federal district court to have the state release him.

The state opposed both motions and requested that a trial date be set by the superior court.The hearing in superior court took place on October 27, 1980.Appellant's motion to dismiss was denied and a trial was set for November 18, 1980, as the court found justification for the state's delay.Ariz.R.Crim.P. 8.2(d) requires a retrial within 60 days after the "service of the mandate."The deputy county attorney prosecuting appellant stated that he never received a mandate from the federal courts or the Attorney General.The trial court held that the confusion caused by the interface of the federal and state rules and the Attorney General's office and Yuma County Attorney's office excused the neglect in scheduling a retrial.

On November 3, 1980, the federal district court denied the state an extension of time to comply with its retry or release order and ordered that appellant be released pending retrial.The parties appeared again in superior court on November 5, 1980 to enforce the federal court's order.At the hearing, the deputy county attorney "requested"the court to dismiss the prosecution without prejudice to avoid the speedy trial limits of Rule 8.2(d).When the court asked if the state was moving for a dismissal without prejudice, the prosecutor correctly replied that the state could not make such a motion due to Rules 8.6and16.5(a).The prosecutor then stated that he was merely "submitting" the matter to the court for its consideration.Over appellant's vigorous objections and pursuant to Rule 8.6, the court dismissed the case and did so without prejudice by finding that the state's delay was justified.The court also ordered that the appellant be released forthwith.

While appellant was being processed out of jail, the state filed a new case (the instant case) charging the same offenses as in the original prosecution.Before appellant could be released from jail, he was arrested and held pending trial of the new case.The filing of the new case apparently also gave the state 90 days from the new arraignment to try appellant.Rule 8.2(b).

Appellant finally went to trial on February 11, 1981 and was convicted.The speedy trial issue is now before us on appeal from appellant's conviction.At the outset, the state argues that appellant has waived his right to raise the speedy trial issue.It argues that appellant should have brought a special action sometime before the new trial started so that there would not be an unnecessary trial.Although we agree that a special action on speedy trial issues promotes judicial economy, we do not believe appellant waived any rights.First, this Court has often considered speedy trial arguments on appeal and has never required that they be brought by way of special action.Second, appellant's failure to bring a special action may be attributed in part to the statements of the state's representative.When appellant appealed the dismissal of the original case without prejudice, the state moved for dismissal of the appeal arguing in part that "appellant is free to raise his challenges after judgment and sentence in a timely filed Opening Brief."The state's motion to dismiss the appeal was thereafter granted.²These facts do not support a finding of waiver.

We must first determine what speedy trial rule applies to appellant's original case.The parties and the trial court assumed that the speedy trial time limits of Ariz.R.Crim.P. 8.2(d) would apply.Rule 8.2(d) requires a retrial within 60 days of the service of the mandate when a defendant's conviction is reversed on appeal in the state courts.Rule 8.2 is not explicit as to the time period within which a retrial must be had when a defendant is granted habeas corpus relief in federal court, however.We hold that the parties were correct in assuming that Rule 8.2(d) applies in such cases.The state's position after a federal court grants a state prisoner habeas corpus relief is analogous to the state's position after a state court reverses a defendant's convictions.In both situations, the state has investigated, assembled, and tried the case once, and it need only reassemble its evidence.Furthermore, a defendant who must go to federal court to have a faulty conviction declared invalid should be entitled to no less speedy trial protection than a defendant who finds relief in the state courts.Therefore, Rule 8.2(d) gives a defendant granted federal habeas corpus relief the right to be retried within 60 days after the federal mandate is served.³

We next turn to whether there was a speedy trial violation under Rule 8.2(d).Rule 8.2(d) requires a retrial after reversal of a conviction within 60 days from "service of the mandate" from the appropriate court.The Notice of Entry of Judgment sent by the Ninth Circuit after its affirmance of the district court could not be clearer in its discussion of the mandate.The certified copy of the judgment would be the mandate, and the judgment/mandate would be...