State v. Washington

• Decision Date: 08 June 1981
• Docket Number: No. CR,CR
• Citation: State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (Ark. 1981)
• Parties: STATE of Arkansas, Appellant, v. Charles WASHINGTON and L. C. Washington, Appellees. 81-5.
• Court: Arkansas Supreme Court

Page 3

617 S.W.2d 3

273 Ark. 82

STATE of Arkansas, Appellant, v.Charles WASHINGTON and L. C. Washington, Appellees.

No. CR 81-5.

Supreme Court of Arkansas.

June 8, 1981.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellant.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for appellee.

ADKISSON, Chief Justice.

This is an appeal by the State from an order of the Pulaski County Circuit Court dismissing charges of first degree battery against appellees, Charles and L. C. Washington, for failure of the State to bring them to trial within three terms of court.

The order of dismissal was entered on October 27, 1980, pursuant to Rule 30.1(a), Ark.Rules Crim.Proc., Ark.Stat.Ann., Vol. 4A (Repl.1977), which provides:

(A)defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged.This discharge shall constitute an absolute bar to prosecution....

Since each appellee was on bail or lawfully at liberty prior to the date charges were filed in circuit court, the speedy trial provisions of Art. VIII, Rules 27.1 30.2, Ark.Rules Crim.Proc., Ark.Stat.Ann., Vol. 4A (Repl.1977) began to run from the time of arrest and require that the appellees be brought to trial before the end of the third full term of court after arrest.Wade v. State, 264 Ark. 320, 571 S.W.2d 231(1978).

The terms of court in Pulaski County begin on the first Monday in March and the fourth Monday in September.Ark.Stat.Ann. § 22-310(Repl.1962).Thus, the relevant court terms are:

March 5, 1979

September 24, 1979

March 3, 1980

September 22, 1980

Appellees were arrested sometime prior to the March 5, 1979, term of the Pulaski County Circuit Court.Therefore, the trial must have been held before September 22, 1980.

The State contends that this case should not have been dismissed for a denial of the right to a speedy trial as there were two excludable periods of time within the three terms of court which had run one period based on the unavailability for trial of the appellees and the second period based on the time between the State's entry of a nolle prosequi and the time the charges were refiled.

First, the State argues that the third term of court following arrest was extended by the period of delay resulting from appellees' absence or unavailability pursuant to Rule 28.3(e) which provides:

The period of delay resulting from the absence or unavailability of the defendant.A defendant shall be considered absent whenever his whereabouts are unknown.A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

The burden is on the State to prove an excludable period is legally justified.State v. Lewis, 268 Ark. 359, 596 S.W.2d 697(1980).To do this the State relies primarily on the docket sheet notes kept by the trial judge:

                               CRIMINAL DOCKET
                Case No.: 79-0801   State of Arkansas
                                    vs. Battery, First Degree
                                    L. C. Washington
                                    Charles Washington
                Date of Filing:     May 1, 1979
                Date of Orders      Orders of Court
                ------------------  ----------------------------------------
                08/25/79            Scheduled 10/3/79, 8:30 a.m. to
                                    sound the docket on L. C. Washington
                08/25/79            Charles Washington scheduled
                                    9/12/79, 8:30 a.m. for P&A
                09/12/79            Pass to October 11, 1979 Charles
                                    failed to appear on recognizance bond
                                    and sheriff has (not) served warrant
                                    on L. C. Washington
                10/03/79            Pass to 11/8/79 for report from sheriff
                11/08/79            L. C. Washington, Charles Washington--
                                    Pass to 12/13/79 for clerk to issue
                                    warrant and for sheriff to report
                                    L. C. to surrender today
                                    Passed to 12/13/79.
                11/16/79            Tom Carpenter represents defendant;
                                    waive reading of information; plea
                                    of not guilty; jury trial; pass both
                                    defendants to 12/13/79 at 8:30 for
                                    P&A of L. C. and trial setting.
                                    Charles to remain on recognizance
                                    bond.
                12/13/79            L. C. Washington--Waives reading of
                                    information.  Plea of not guilty is
                                    entered.  Jury trial requested
                                    3/5/80.  Pretrial February 14, 1980.
                02/14/80            Pretrial hearing--negotiations
                                    extended to 2/28/80.
                02/27/80            Nolle Prosequi Order filed.
                10/07/80            Motion to dismiss for lack of speedy
                                    trial filed.
                

The record reflects that this case was filed in circuit court on May 1, 1979, and a bench warrant was issued for the arrest of L. C. Washington(L.C.).At this time L.C. was free on a $2,500 bond which had been made while the case was pending in Little Rock Municipal Court.The State claims L.C.'s time for trial was extended since he was unavailable from August 25, 1979, when he failed to appear "to sound the docket" until he appeared on November 16, 1979.Neither the docket sheet nor any other information in the record reflects that L.C. or his bondsman were notified of any date on which he was required to appear.

Charges were also filed against Charles Washington(Charles) in circuit court on May 1, 1979, but no bench warrant was issued for him.Charles had been recognized for all subsequent appearances by the Little Rock Municipal Court which was the examining court.

The State claims Charles's time for trial was extended since he was unavailable from September 12, 1979, when he failed to appear for his scheduled plea and arraignment until he appeared on November 16, 1979.The court apparently attempted to notify Charles of this date by way of a letter addressed to him at 18211/2 South Valentine in Little Rock.This address is not given by the State on the back of the...