APPEAL
FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CR-17-113],
HONORABLE CHRIS E WILLIAMS, JUDGE
Gregory
Crain, Malvern, for appellant.
Leslie
Rutledge, Atty Gen., by: Brad Newman, Asst Atty Gen., for
appellee.
OPINION
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
Page 702
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 defendants
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 Dodsons 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 States 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 States 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 courts orders
granting the States 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, Dodsons 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.
Page 703
We
next examine the period of time between the mistrial and
Dodsons 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 ...