PETITION FOR WRIT OF CERTIORARI
Mitchell, Managing Public Defender, for appellant.
Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
Zimmerman has filed a petition for writ of certiorari in
which she contends that her right to speedy trial has been
violated. This court voted to take the petition as a case and
ordered the parties to submit briefs. We grant the petition.
was arrested on charges of theft of property over $25, 000
and second-degree forgery on September 10, 2012. An
information charging her with those offenses was filed on
December 6, 2012. Zimmerman was arraigned on December 11,
2012. During the arraignment, she indicated that she wished
to hire counsel. She was ordered to appear on February 19,
2013. She appeared on that date with counsel and requested a
continuance, which was granted. The circuit court
subsequently granted four additional requests for continuance
by Zimmerman. On October 21, 2013, the State made an oral
motion to nolle prosequi the charges against Zimmerman. It
appears from the record that the motion was based on
Zimmerman's agreement to pay restitution to the victim.
The motion was orally granted by the circuit court. The State
subsequently filed a written motion for nolle prosequi. A
written order granting the motion was filed on March 17,
State filed a new criminal information on August 7, 2014,
again charging Zimmerman with theft of property over $25, 000
and second-degree forgery. Hearings were set for September
16, 2014, January 20, 2015, and April 21, 2015. On each of
these dates, Zimmerman failed to appear and her whereabouts
were unknown. On April 29, 2015, Zimmerman was arrested on a
warrant issued when the charges against her were refiled. She
appeared with counsel on May 12, 2015, and requested and was
granted a continuance. She subsequently requested and was
granted a series of continuances that resulted in the case
being continued until April 26, 2017.
March 24, 2017, Zimmerman filed a motion to dismiss for
failure to provide her with a speedy trial. Following a
hearing on the motion, the circuit court entered an order
denying the motion on May 25, 2017. On July 8, 2017,
Zimmerman filed a motion for reconsideration of the order
denying her motion to dismiss, which was denied by the
circuit court. Zimmerman filed the instant petition for writ
of certiorari on October 16, 2017.
court has held that an order denying a motion to dismiss
based on a speedy-trial violation may be subject to review
through a petition for writ of certiorari. Ark. R. Crim. P.
28.1(d) (2017); Brown v. Gibson, 2012 Ark. 285, 423
S.W.3d 34. There are two requirements that must be satisfied
for this court to grant a writ of certiorari. Pedraza v.
Cir. Ct. of Drew Cty., 2013 Ark. 116, at 8, 426 S.W.3d
441, 446. The first requirement for a writ of certiorari is
that there can be no other adequate remedy but for the writ
of certiorari. Id. Second, a writ of certiorari lies
only when (1) it is apparent on the face of the record that
there has been a plain, manifest, clear, and gross abuse of
discretion, or (2) there is a lack of jurisdiction, an act in
excess of jurisdiction on the face of the record, or the
proceedings are erroneous on the face of the record.
Id. Certiorari is not to be used to look beyond the
face of the record to ascertain the actual merits of a
controversy, to control discretion, to review a finding upon
facts, or to review the exercise of a court's
discretionary authority. Id. This court has held
that the writ of certiorari may not be used as a substitute
for an appeal. Conner v. Simes, 355 Ark. 422, 429,
139 S.W.3d 476, 480 (2003).
has alleged a violation of her right to speedy trial.
Arkansas Rule of Criminal Procedure 28.1(c) provides that
[a]ny defendant charged with an offense and held to bail, or
otherwise lawfully set at liberty, including released from
incarceration pursuant to subsection (a) hereof, shall be
entitled to have the charge dismissed with an absolute bar to
prosecution if not 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.
defendant establishes a prima facie case of a speedy-trial
violation, i.e., that his or her trial took place outside the
speedy-trial period, the State bears the burden of showing
that the delay was the result of the defendant's conduct
or was otherwise justified. Branning v. State, 371
Ark. 433, 267 S.W.3d 599 (2007). The trial court found that
1, 656 days passed between Zimmerman's initial arrest and
the filing of her motion to dismiss. The trial court also
found that 1, 347 of those days were excluded under Rule
28.3(c), leaving 309 days during which speedy trial was not
tolled. This would leave the State with fifty-six days to
bring Zimmerman to trial. In her petition, Zimmerman
stipulates to 987 days of excluded time. She challenges the
trial court's findings as to two periods of time:
December 11, 2012, through February 19, 2013 (a period of
seventy days), and October 21, 2013, through March 17, 2014
(a period of 290 days).
290-day period from October 21, 2013, through March 17, 2014,
is the time from the date of the State's oral motion to
nolle prosequi to the entry of the written order granting the
motion. The trial court determined that this period was
excluded pursuant to Arkansas Rule of Criminal Procedure
28.3(f), which provides that the time between a dismissal or
nolle prosequi upon motion of the prosecuting attorney and
the time the charge is later filed for the same offense is
excluded in computing the time for trial. Zimmerman contends
that this period should not be excluded because the nolle
prosequi of the charges did not become effective until the
written order was entered on March 17, 2014.
State contends that Zimmerman's challenge to this period
is not preserved because she agreed at the October 21, 2013
hearing that the State had time to refile the charges, thus
waiving any challenge to speedy trial. While Zimmerman's
counsel did agree that the applicable statute of limitations
would permit the State to refile the charges (which it later
did), there is no indication that Zimmerman agreed that
speedy trial would be tolled from the date of the motion for
nolle prosequi, nor is there anything in the record to