APPEAL
FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CR-17-113]
HONORABLE CHRIS E WILLIAMS, JUDGE
Gregory Crain, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE
Appellant
Travis Dodson was convicted by a Grant County jury of one
count of possession of a controlled substance and five counts
of possession of drug paraphernalia and sentenced to a total
term of 444 months in the Arkansas Department of Correction.
His sole argument on appeal is that the circuit court erred
in denying his motion to dismiss on speedy-trial grounds. We
affirm.
We
begin by setting out our rules governing speedy trials and
our standard of review. Arkansas Rules of Criminal Procedure
28.1(b) and 28.2(a) require the State to bring a criminal
defendant to trial within twelve months from the date of his
or her arrest, excluding only such periods of necessary delay
as are authorized by Rule 28.3. If a defendant is not brought
to trial within the requisite time, he or she is entitled to
have the charges dismissed with an absolute bar to
prosecution. Ark. R. Crim. P. 30.1(a). Once it has been shown
that a trial will be held after the speedy-trial period set
out in Rule 28.1 has expired, the State bears the burden of
proving that the delay was the result of the defendant's
conduct or was otherwise justified. Miles v. State,
348 Ark. 544, 75 S.W.3d 677 (2002). This court conducts a de
novo review to determine whether specific periods of time are
excludable under the speedy-trial rules. Pitts v.
State, 2019 Ark.App. 107, 571 S.W.3d 64; Federick v.
State, 2012 Ark.App. 552, 423 S.W.3d 649. With our rules
in mind, we now examine the procedural history of this case
to determine whether Dodson's speedy-trial rights were
violated.
Dodson
was arrested on December 9, 2016. His trial was originally
scheduled for December 4, 2017; however, the State moved
several times for continuances. The circuit court granted
each of the State's motions and entered orders tolling
the time for speedy trial. Dodson went to trial on March 16,
2018, but the trial on that date ended in a
mistrial.[1] During this time frame, from the date of
arrest through the date of the initial trial, Dodson did not
object to any of the State's motions for continuance or
the orders entered by the court tolling the time, nor did he
move to dismiss on speedy-trial grounds.
Subsequent
to the mistrial, the State announced that it was electing to
retry the case, and the circuit court set the matter for
retrial on May 24, 2018. Three days before trial, Dodson
filed a motion to dismiss in which he argued that over one
year had elapsed since his arrest and that the charges should
be dismissed "for violation of speedy trial." The
circuit court denied the motion, and the matter proceeded to
trial on May 24. The jury convicted and sentenced Dodson as
described above, and he timely appealed.
On
appeal, Dodson argues that the circuit court erred in
excluding periods of time that should have been attributable
to the State; he also argues that the circuit court's
orders granting the State's motions for continuance and
tolling speedy trial were insufficient to satisfy the
requirements of Arkansas Rule of Criminal Procedure 28.3(b).
We do not address the merits of his arguments for two
reasons: first, Dodson waived his right to move for dismissal
prior to his first trial; and second, less than twelve months
elapsed before his second trial, and thus no speedy-trial
violation occurred.
We
first address the waiver issue. Admittedly, Dodson's
March 16, 2018 trial occurred more than twelve months after
his December 9, 2016 arrest, a fact the State readily
acknowledges. Arkansas Rule of Criminal Procedure 30.2,
however, provides that the "[f]ailure of a defendant to
move for dismissal of the charges under these rules prior
to . . . trial shall constitute a waiver of his rights
under these rules." (Emphasis added.) See also
Duncan v. State, 294 Ark. 105, 107, 740 S.W.2d 923,
924-25 (1987) (citing Garrison v. State, 270 Ark.
426, 431, 605 S.W.2d 467, 469 (Ark. Ct. App. 1980) (noting
that rule 30.2 "provides that a defendant waives his
right to a speedy trial if he fails to move for dismissal
'prior to a plea of guilty or trial'")). Nothing
in our de novo review of the record[2] indicates that Dodson filed
a motion to dismiss based on an alleged speedy-trial
violation prior to his March 16 trial and mistrial.
Accordingly, his failure to do so constituted a waiver of his
speedy-trial rights under Rule 30.2.
We next
examine the period of time between the mistrial and
Dodson's second trial. The mistrial occurred on March 16,
2018, and the second trial was held on May 24, 2018; thus,
just slightly more than two months elapsed during that time
period. According to Arkansas Rule of Criminal Procedure
28.2(c), "[i]f the defendant is to be retried following
a mistrial, the time for trial shall commence running
from the date of mistrial." (Emphasis added.)
This language has frequently been interpreted to mean that
"the twelve-month 'counter' starts running anew
after a mistrial has been declared." Burmingham v.
State, 346 Ark. 78, 85, 57 S.W.3d 118, 123 (2001);
Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999);
Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993)
(retrial within five months of mistrial did not constitute
speedy-trial violation). The second trial occurred within far
less than twelve months of the mistrial, and Dodson's
speedy-trial rights were therefore not violated.
Because
Dodson waived his right to bring a speedy-trial challenge to
the first trial, and his second trial was held within twelve
months of his mistrial, the circuit court did not err in
denying Dodson's motion to dismiss on speedy-trial
grounds.
Affirmed.
Abramson and ...