Tanner v. State, CR

• Decision Date: 01 April 1996
• Docket Number: No. CR,CR
• Citation: 918 S.W.2d 166,324 Ark. 37
• Parties: Jerrold Anthony TANNER, Appellant, v. STATE of Arkansas, Appellee. 95-1064.
• Court: Arkansas Supreme Court

Page 166

918 S.W.2d 166

324 Ark. 37

Jerrold Anthony TANNER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-1064.

Supreme Court of Arkansas.

April 1, 1996.

Thomas D. Deen, Dermott, for Appellant.

Brad Newman, Asst. Attorney General, Little Rock, for Appellee.

JESSON, Chief Justice.

The issue on appeal is whether the appellant was denied his right to a speedy trial under the Arkansas Rules of Criminal Procedure. We conclude that he was, and reverse and dismiss his convictions.

The appellant was arrested on January 12, 1994. No information was filed against him until August 17, 1994. In that information, and in an amended information filed December 22, 1994, he was charged with twelve drug-related counts. On March 21, 1995, he was tried and convicted on eleven of those counts: five counts of delivery of cocaine, three counts of delivery of marijuana, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of operating a "drug house" within 1,000 feet of a drug-free zone. His sentence was forty-seven years imprisonment.

Although the appellant was tried on March 21, 1995, he was originally scheduled to be tried on December 13, 1994, approximately eleven months after his arrest. However, at a December 12, 1994 pre-trial hearing, the court, on its own motion, reset the appellant's trial for February 15, 1995. There is nothing in the record to reflect that appellant or his counsel were present at the hearing. On December 14, 1994, the court filed an order which purported to exclude the period of December 13, 1994, to February 15, 1995, from speedy trial computation. The court stated the following as the reason for the exclusion of time:

trial set for 12/13/94 had to be rescheduled due to commencement of capital murder trial of Frederick Jacobs, Drew [County] CR93-138-1 on 12/13-16/94.

The order indicated that the prosecutor and appellant's counsel were notified of the continuance by mail.

On February 13, 1995, two days before trial was scheduled, the appellant appeared at a pre-trial hearing and requested a continuance. The trial was rescheduled for March 21, 1995. On March 20, 1995, the day before trial, the appellant made an oral motion to dismiss, saying he had been denied his right to a speedy trial. He argued that the court had erred in excluding the period of December 13, 1994, to February 15, 1995, from speedy trial computation because the law allows exclusion for "docket congestion" only in exceptional circumstances. He presented docket records from the Frederick Jacobs case--the case which had "bumped" his--showing that, although Jacobs had been arrested on October 16, 1993, approximately ten of the fourteen elapsed months had been properly excluded from speedy trial computation. Therefore, he said, there was no pressing need to try Jacobs and no exceptional circumstances were present. ¹

The court denied the motion to dismiss. The essence of the ruling was that the appellant had waited too long to contest the December 14, 1994 order.

It is undisputed that, under Ark.R.Crim.P. Rules 28.1(c) and 28.2(a), the appellant is entitled to have the charges against him dismissed if he was not brought to trial within twelve months from January 12, 1994, excluding such periods allowed by Ark.R.Crim.P. Rule 28.3. The appellant was tried one year and sixty-eight days after his arrest. There is no dispute that the forty-four days between February 15, 1995, and March 21, 1995, are properly excludable since they can be attributed to the appellant's own motion for continuance. Ark.R.Crim.P. Rule 28.3(c). It is the remaining twenty-four days, attributable to the court-ordered continuance of December 12, 1994, that we are concerned with in this appeal. The question we are faced with is twofold: 1) was the period from December 13, 1994 to February 15, 1995 excludable from speedy trial computation, and 2) if it was not, did the appellant waive his right to challenge the excludability of that period.

Once it is shown that a trial is held outside the applicable speedy trial period, the state has the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Ark.R.Crim.P. Rule 28.3 contains two sections which could serve to justify the delay in this case:

The following periods shall be excluded in computing time for trial:

(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.

....

(h) Other periods of delay for good cause.

In Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), the court, on its own motion, continued the appellant's trial to a date which was outside the speedy trial period. A docket entry read that, "due to the crowded court trial docket" it was necessary to move the appellant's trial. At a later hearing, the court explained that the trial in another matter, State of Arkansas vs. Charles Moore, would be tried over a two day period, thus necessitating a continuance in Hicks's case. We stated that, "the law is well settled that congestion of the trial docket, alone, is not just cause for breaching the speedy trial rule." We found that the circumstances set out in the docket entry were not exceptional:

No explanation was offered as to why the case could not have been tried during the week immediately following the Moore trial, and before the last week in the month when the trial court was required to travel to other counties.

In Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989), we also addressed the issue of what exceptional circumstances justify exclusion of time for a crowded trial docket. There, Stanley's trial was scheduled for Monday, June 9, 1986. A capital murder trial had begun on June 2 in the only courtroom available for jury trials. On Friday, June 6, it appeared to the judge that the murder trial would run over until June 9. So, the judge entered an order continuing Stanley's trial and explaining the circumstances. We held that "this constitutes the type of order contemplated by Rule 28.3(b)."

The case at bar falls somewhere in between the well-explained need for a continuance in Stanley and the simple, unsatisfactory notation of a "crowded court trial docket" in Hicks. In the order excluding time, the trial court expressed its desire to try the Drew County murder case of Frederick Jacobs on a date originally scheduled for Desha County trials, such as the appellant's. However, the fact that a murder trial is pending in an adjacent county does not, without more constitute an exceptional circumstance. This case is more like Hicks in that regard, because we are only told that the appellant's trial has been rescheduled due to the trial of another matter.

We realize that trial courts may, for a variety of reasons, wish to give priority to pending murder cases. However, when that desire infringes on another defendant's constitutional right to a speedy trial, and on our Rules of Criminal Procedure, it must yield, unless there are exceptional circumstances. In those situations, the trial court must note the exceptional circumstances in its order continuing the case. Ark.R.Crim.P. Rule 28.3(b). We hold that the commencement of a capital murder trial on the appellant's scheduled trial date, does not, standing alone, constitute an exceptional circumstance justifying exclusion of time for docket congestion. Likewise, in the absence of any explanation other than that the court preferred to try another case, we hold that the time period in question cannot be excluded for "good cause" pursuant to Rule 28.3(h). See generally Novak v. State, supra.

We now turn to the question of whether the appellant, by waiting until March 20, 1995 to question the court's December 14, 1994 order, waived his right to a speedy trial. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Novak v. State, supra. In Arkansas, the speedy trial period commences to run "without demand by the defendant." Ark.R.Crim.P. Rule 28.2. Furthermore, the Rules of Criminal Procedure do not mention waiver of the right to a speedy trial unless the defendant fails to move for dismissal prior to a plea of guilty or a trial. Ark.R.Crim.P. Rule 28.1(f).

With these considerations in mind, we hold that the appellant did not waive his right to move for dismissal based on a speedy trial violation. In Hicks v. State, supra, the state argued that, by waiting until the day after the speedy trial time ran to file his motion to dismiss, Hicks had waived his rights. We stated that Hicks's motion was made in advance of trial and was thus, timely. In Raglin v. State, 35 Ark.App. 181, 816 S.W.2d 618 (1991), the court of appeals held that a defendant need not affirmatively protest a court-ordered continuance at the time the continuance is granted because to do so would "place the burden on the accused to demand a speedy trial at every stage of the proceedings" in spite of the clear dictate of Rule 28.2. In this case, the appellant's motion to dismiss was made before trial, and, under the circumstances of this case, he was not required to challenge the court-ordered exclusion of time immediately upon issuance of the court's order. As we stated earlier, it is the burden of the prosecution and the courts to see that a defendant is brought to trial on time.

The state refers to our recent case of Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), in support of its waiver argument. In Mack, we said that "the time to raise the issue" of whether a certain period...