FROM THE CRITTENDEN COUNTY CIRCUIT COURT. CR-2012-658.
HONORABLE RANDY F. PHILHOURS, JUDGE.
Hair, Deputy Pub. Del., for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
F. WYNNE, Associate Justice. BAKER, GOODSON, and WOOD, B.,
concur in part and dissent in part.
F. WYNNE, Associate Justice
Carter appeals from his convictions on three counts of rape,
for which he was sentenced to consecutive terms of
imprisonment of life, fifty years, and fifty
years. On appeal, he argues that his
convictions should be reversed and dismissed for a
speedy-trial violation because the trial court did not follow
the strict commands of Arkansas Rule of Criminal Procedure
28.3(b)(1). For the reason set out below, we affirm.
was arrested on June 15, 2012. His trial was continued on
several occasions. Pertinent to this appeal, the circuit
court entered a scheduling order setting the case for trial
to be held on March 11, 2013. On March 7, 2013, the circuit
court entered a scheduling order continuing the trial until
May 13, 2013. On May 13, 2013, appellant's trial was
continued over appellant's objection, with the trial
court noting on the docket the following: " Case
continued over defendant's objection based on congested
docket. The case is set for July 22, the next available date
on this docket. The time is excluded. The court finds there
is no prejudice to the defendant who is out on bond."
The court also entered an order setting a new trial date of
July 22, 2013.
case was tried before a Crittenden County jury on July 22-24,
2013. In a pretrial hearing outside the presence of the jury,
appellant moved to dismiss his case based on an alleged
speedy-trial violation. During this hearing, the circuit
court and counsel discussed that the continuance granted on
March 7, 2013, had been at defense counsel's request due
to illness in his family; his wife had been diagnosed with
the flu, and the doctor had informed them that he and their
three young children would likely get the flu also. The court
denied the motion. Appellant was found guilty on all three
counts and sentenced by the court on September 16, 2013. On
September 20, 2013, appellant filed a " motion to
supplement the record and to renew motion to dismiss for
violation of speedy trial." In his motion, appellant
argued that " other than the State's contention that
the trial docket was congested during the May 2013
term," " there are no excludable periods." The
State responded with a detailed explanation for each
continuance of appellant's trial date. The circuit court
denied appellant's motion by written order entered on
October 2, 2013. This appeal followed.
Pursuant to Rule 28.1 of the Arkansas Rules of Criminal
Procedure, a defendant must be brought to trial within twelve
months unless there are periods of delay that are excluded
under Rule 28.3. See Ark. R. Crim. P. 28.1(b), (c)
(2013); Eagle v. State, 2012 Ark. 371. On appeal, we
conduct a de novo review to determine whether specific
periods of time are excludable under our speedy-trial rules.
Yarbrough v. State, 370 Ark. 31, 33, 257 S.W.3d 50,
53 (2007). Once a defendant establishes a prima facie case of
a speedy-trial violation, i.e., that his or her trial took
place outside of the speedy-trial period, the State bean the
burden of showing that the delay was the result of the
defendant's conduct or was otherwise justified.
present case, it is undisputed that appellant was tried 402
days after his arrest; thus, the burden is on the State to
prove that the delay was excludeable for speedy-trial
purposes. See Yarbrough v. State, supra.
Relevant to this appeal, Rule 28.3(b) provides that the
following is excluded:
The period of delay resulting from a continuance attributable
to congestion of the trial docket if in a written order or
docket entry at the time the continuance is granted:
(1) the court explains with particularity the reasons the
trial docket does not permit trial on the date originally
(2) the court determines that the delay will not prejudice
the defendant; and
(3) the court schedules the trial on the next available date
permitted by ...