FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CR-13-13]
HONORABLE JODI RAINES DENNIS, JUDGE
D. Files, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
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'
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
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.
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.
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
Points on Appeal
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).
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).
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 ...