Swartz v. Piazza

• Decision Date: 09 October 2003
• Docket Number: No. CR 03-58.,CR 03-58.
• Citation: 123 S.W.3d 877,354 Ark. 334
• Parties: Jeffrey Stewart SWARTZ v. The Honorable Chris PIAZZA, Judge.
• Court: Arkansas Supreme Court

123 S.W.3d 877

354 Ark. 334

Jeffrey Stewart SWARTZ v. The Honorable Chris PIAZZA, Judge.

No. CR 03-58.

Supreme Court of Arkansas.

October 9, 2003.

Stephen E. Morley, North Little Rock, for petitioner.

Mike Beebe, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., Little Rock, for respondent.

W.H. "DUB" ARNOLD, Chief Justice.

Petitioner, Jeffrey Stewart Swartz, brings a petition for a writ of prohibition against Pulaski County Circuit Court, Second Division, naming Judge Chris Piazza as respondent. This petition arises from the trial court's order denying a motion to dismiss based upon violations of the speedy-trial provisions of Ark. R. Crim. P. 28. In his petition, petitioner seeks a writ of prohibition on his prosecution and a reversal of the trial court's denial of his motion to dismiss. Petitioner argues that the State has failed to bring him to trial within the 365 days required under Ark. R. Crim. P. 28.1. We deny the petition.

I. Facts

On April 11, 2001, petitioner was arrested for driving while under the influence, driving with a suspended license, improper passing, no proof of liability insurance, and leaving the scene of an accident involving personal injury. On April 30, 2001, petitioner pled not guilty in North Little Rock Municipal Court. Trial was scheduled at that time for June 19, 2001; however, on the trial date, petitioner failed to appear. Bench warrants were later issued on December 26, 2001. On February 6, 2002, the warrants were served, and petitioner was arrested for his failure to appear for trial on June 19.

A criminal information, charging petitioner with leaving the scene of an accident with injury (a felony) and violation of the DWI Omnibus Act, third offense, as well as driving with a suspended or revoked driver's license (misdemeanors) was filed on July 25, 2002. Bond forfeiture was ordered and was later set aside; and, on October 23, 2002, petitioner filed a motion to dismiss his charges for lack of a speedy trial.

A hearing on petitioner's speedy-trial motion was held on November 7, 2002, during which Judy West, the chief clerk for North Little Rock's Traffic Court, testified as the only witness. The State introduced State's Exhibit No. 1, which was identified as the "Municipal Court System's Judge's Calendar"; it was admitted into evidence. Clerk West testified that Exhibit No. 1 reflected the fact that petitioner failed to appear for trial on June 19, 2001, and that the court had, as a result, ordered bench warrants to be issued. She went on to testify that the warrants were not issued until December 26, 2001, because there was an influx of additional tickets being issued by state troopers at that time and that her office "simply got behind" in issuing bench warrants. She averred that the clerk's file did not contain a docket sheet with the judge's notes for June 19, but that the court's calendar, which was generated by a deputy clerk, reflected any oral orders made by the judge.

At the close of the hearing, Judge Piazza announced the issue to be whether there was a sufficient enough entry by the municipal court judge on June 19, 2001, to indicate a failure to appear, when all that was noted by the municipal court judge was "BW." The parties were ordered to file post-hearing briefs. On January 15, 2002, the circuit court issued an order generally denying petitioner's motion to dismiss. The order did not address what time was excludable for purposes of speedy-trial calculations.

Petitioner now seeks a writ of prohibition, contending that he is entitled to have his charges completely dismissed pursuant to Ark. R.Crim. P. 28.1(b) because a clear record was not made contemporaneously at the time he failed to appear for trial; and, as such, no excludable time for purposes of speedy-trial calculations exists. We disagree.

II. Speedy Trial

Petitioner seeks a writ of prohibition against Judge Chris Piazza to prohibit him from conducting a trial on the basis that he had been denied a speedy trial. We note that petitioner erroneously seeks the writ against Judge Piazza. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003); Crump v. Ford, 346 Ark. 156, 55 S.W.3d 295 (2001). Accordingly, we must treat the petition as one against the Pulaski County Circuit Court, Second Division. Id.

Petitioner argues that a writ of prohibition should issue. In Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002), we stated as follows:

Pursuant to Ark. R.Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant's motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction.

Id. (citing Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002)). A writ of prohibition will not issue unless it is clearly warranted. Id.

Under Ark. R.Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R.Crim. P. 28.3. Moody v. Arkansas County Circuit Court, Southern District, 350 Ark. 176, 85 S.W.3d 534 (2002). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R.Crim. P. 30.1. If, prior to that time, the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R.Crim. P. 28.2. It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Moody, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified. Id.

In the instant case, there were, indisputably, 560 days between April 11, 2001, when petitioner was arrested, and October 23, 2002, when petitioner filed his motion to dismiss based on speedy trial. Accordingly, petitioner has made a prima facie showing of a speedy-trial violation. Id.; see also Chenowith v....