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Hinton v. State

Supreme Court of Arkansas

March 30, 2017

KENNETH HINTON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CR-13-13] HONORABLE JODI RAINES DENNIS, JUDGE

          Jason D. Files, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, Associate Justice

         On June 7, 2013, appellant, Kenneth Hinton, was charged with one count of battery in the first degree and one count of battery in the second degree. The charges stem from a disturbance at the Varner Unit of the Arkansas Department of Correction (hereinafter "ADC") on October 28, 2012, in which Hinton and other inmates were involved. Hinton was charged in the disturbance for injuring Warden Joe Page and correctional officer Stephen Simmons. On December 14, 2014, the case was tried and resulted in a mistrial. On April 25, 2016, the matter proceeded to trial for a second time, and a Lincoln County jury convicted Hinton of one count of first-degree battery and one count of second-degree battery and sentenced him to thirty years' imprisonment and fifteen years' imprisonment respectively.

         At trial, the testimony demonstrated that ADC Warden Joe Page and ADC Correctional Officer Stephen Simmons were physically injured. Simmons testified that on October 28, 2012, he was working at the Varner Unit as a shift lieutenant. On the day of the incident, a riot began as inmates started to leave the chow hall and the inmates started to fight each other and correctional officers. Simmons further testified that during the riot, Hinton struck him in the back of the head. Kenneth Ridgell, Field Rider at the ADC, testified that on the day of the incident, he witnessed Hinton "blind side" Page and hit Page with a closed fist; Page fell forward unconscious.

         The case first proceeded to trial and ended in a mistrial on December 15, 2014. On June 4, 2015, the circuit court entered a scheduling order setting a new trial date for October 26-29, 2015. On that same date, a second scheduling order was entered setting the new trial date for November 17-19, 2015. On October 9, 2015, Hinton filed a motion to continue the October 26, 2015 trial date asserting that he had not received notice of the trial date and was not available for trial and was aware only of the November 2015 trial date. On November 19, 2015, the circuit court entered a revised scheduling order, granting Hinton's motion for continuance and resetting the trial for April 25-27, 2016.

         On April 20, 2016, Hinton filed a motion to dismiss alleging a speedy-trial violation. On April 21, 2016, the circuit court denied the motion to dismiss. On April 25, 2016, the matter proceeded to trial for a second time, and Hinton was convicted and sentenced as described above. On May 16, 2016, the circuit court entered a judgment and commitment order.

         On May 26, 2016, Hinton timely appealed to the court of appeals. On February 8, 2017, we accepted certification of this case. Hinton presents two issues on appeal: (1) the circuit court erred in denying Hinton's motion to dismiss based on an alleged speedy-trial violation and (2) the circuit court erred in denying Hinton's motion to appear in civilian clothing.

         I. Points on Appeal

         A. Speedy Trial

         For his first point on appeal, Hinton asserts that the circuit court erred when it denied his motion to dismiss based on an alleged speedy-trial violation. Because this court conducts a de novo review on appeal to determine whether specific periods of time are excludable under the speedy-trial rules, we discuss the relevant time periods below. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).

         Pursuant to Arkansas Rule of Criminal Procedure 28.1(b) (2016), any defendant charged with an offense and incarcerated in prison in this state pursuant to conviction of another offense must be brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. Ark. R. Crim. P. 28.2(c) requires that if a defendant is retried after a mistrial, the time for trial shall commence to run from the date of mistrial. Next, in calculating the speedy-trial period, necessary periods of delay are excluded as authorized in Ark. R. Crim. P. 28.3. Under Rule 28.3(c), the period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance. Also, the period of time when a defendant's motion for continuance is pending is a period properly excluded under Ark. R.Crim. P. 28.3(a). See Dodson v. State, 358 Ark. 372, 382, 191 S.W.3d 511, 517 (2004). Once it has been determined that the trial took place outside the speedy-trial period of twelve months, the State bears the burden of proving that the delay was the result of the defendant's conduct or was otherwise legally justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

         We turn to review the excludable time period in Hinton's case. At issue is the circuit court's April 21, 2015 denial of Hinton's motion to dismiss:

The case was first tried on December 15, 2014. . . . The defendant moved for a mistrial and it was granted.
. . . .
The case was reset for jury trial on October 26-29, 2015. The 315 days from December 15, 2014, until October 26, 2015, is included in the calculation for speedy trial.
. . . .
On October 9, 2015, the defendant filed a motion to continue the October jury trial. . . . The scheduling order resetting the trial for April 25-27, 2016, excluded from speedy trial the time between trials.
Although more than 365 days have elapsed since December 15, 2014, excluded periods decrease the ...

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