Opinion
Delivered April 22, 1999
On December 17, 1998, we published for comment a proposal to amend the speedy-trial rule. We thank all of those who took the time to review the proposal and submit comments.
We now publish for comment another proposal which takes a different approach from that previously published. The significant difference in the proposal which we publish today and the current rule is that upon the trial court finding a violation of the speedy-trial rule, the court has the discretion to dismiss the case either with prejudice or without prejudice. This option is the federal practice and the practice in a number of states.
The proposal is further explained in the commentary which accompanies the proposed rules.
Comments and suggestions on these proposed rules may be made in writing prior to June 30, 1999. They should be addressed to:
Leslie Steen, Clerk Arkansas Supreme Court Attn: Criminal Procedure Rules Justice Building 625 Marshall Street Little Rock, AR 72201 RULE 28 SPEEDY TRIALRULE 28. 1 . When Time Commences to Run.
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;
(b) when the charge is dismissed upon motion of the defendant and subsequently the dismissed charge is reinstated, or the defendant is arrested or charged with the same offense, the time for trial shall commence running from the date the dismissed charge is reinstated or the defendant is subsequently arrested or charged, whichever is earlier; and when the charge is dismissed upon motion of the defendant and subsequently the charge is reinstated following an appeal, the time for trial shall commence running from the date the mandate is issued by the appellate court;
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of the mistrial, the order granting a new trial, or the remand.
COMMENT: Current Rule 28.2; moved to 28.1 for better flow.
RULE 28. 2 . Limitations and Consequences.
(a) Any defendant charged with an offense and incarcerated in a city or county jail in this state pending trial shall be released on his own recognizance if not brought to trial within nine (9) months from the time provided in Rule 28. 1, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) Any defendant charged with an offense and incarcerated in prison in this state pursuant to conviction of another offense shall be brought to trial within twelve (12) months from the time provided in Rule 28. 1, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(c) Any defendant charged with an offense and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) of this rule, shall be brought to trial within twelve (12) months from the time provided in Rule 28. 1, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(d) If a defendant is not brought to trial within the time provided in subsection (b) or (c) of this rule, the defendant shall be entitled to have the charge dismissed on motion of the defendant. Such dismissal shall be either with or without prejudice. In determining whether to dismiss the charge with or without prejudice, the trial court shall consider such factors as the following: (1) the seriousness of the offense charged, (2) the impact of reprosecution on the administration of justice, (3) the reasons for the delay, (4) the length of the delay in bringing the defendant to trial, (5) the efforts, if any, of the defendant to secure a speedy trial, and (6) the effect of any delay upon the defendant's ability to present a defense. The state shall have the burden of showing periods of necessary delay as provided in Rule 28.3, but the defendant shall have the burden of proof of supporting the motion.
(e) (1) If a motion for dismissal of a charge pursuant to subsection (d) of this rule is denied by the trial court, the defendant may file a petition for writ of prohibition in the Arkansas Supreme Court.
(2) A defendant has no right to appeal an order of dismissal without prejudice.
(3) If a motion for dismissal is granted with prejudice, the state may appeal to the Supreme Court pursuant to Rule 3 of the Rules of Appellate Procedure — Criminal.
(4) The state has no right to appeal an order of dismissal without prejudice.
(f) Failure of a defendant to move for dismissal of a charge pursuant to subsection (d) of this rule prior to a plea of guilty or trial shall constitute a waiver of the defendant's rights under these rules.
(g) This rule shall have no effect in those cases which are expressly governed by the "Interstate Agreement on Detainers Act" (Act 705 of 1971, A.C.A. § 16-95-101 et seq.).
COMMENT: Reference to circuit court deleted so rule is clearly applicable to municipal court. See Whittle v. Washington County Circuit Court , 325 Ark. 136 (1996).
Violation of speedy trial rule results in dismissal, but dismissal is not automatically with prejudice. In subsection (d), the factors for the court to consider in determining whether to dismiss with or without prejudice are derived from federal practice. Subsection (e) addresses review of the trial court's decision.
RULE 28.3. Excluded Periods.
The following periods shall be excluded in computing the time for trial. Such periods shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary below. The number of days of the excluded period or periods shall be added to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant.
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals by the defendant or the state, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.
(b) The period of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted: (1) the court permit trial on the date originally scheduled; (2) the court determines that the delay will not prejudice the defendant; and (3) the trial court schedules the trial on the next available date permitted by the trial docket.
(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. 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.
(d) The period of delay resulting from a continuance (calculated from the date the continuance is granted until the subsequent date contained in the order or docket entry granting the continuance) granted at the request of the prosecuting attorney, if:
(1) the continuance is granted because of the unavailability of evidence material to the State's case, when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date; or
(2) the continuance is granted in a felony case to allow the prosecuting attorney additional time to prepare the State's case and additional time is justified because of the exceptional complexity of the particular case.
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the State for trial.
(f) The time between a dismissal or nolle prosequi upon motion of the prosecuting attorney for good cause shown, and the time the charge is later filed for the same offense or an offense required to be joined with that offense.
(g) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant acting with due diligence shall be granted a severance so that he may be tried within the time limits applicable to him.
(h) Other periods of delay for good cause.
COMMENT: Basically the same as current Rule 28.3. Opening paragraph added [which includes language formerly in subsection (i)], subsection (a) amended to clarify that interlocutory appeals by the state are included, and subsection (b) revised. These changes incorporate previous amendments recommended by Criminal Practice Committee.
RULE 28.4. Effect of Prior Dismissal .
(a) The dismissal of a charge without prejudice pursuant to subsection (d) of Rule 28.2 shall not be a bar to a subsequent prosecution for the same offense or any offense required by Rule 21.3 to be joined with the charge dismissed.
(b) If a charge is dismissed without prejudice pursuant to subsection (d) of Rule 28.2, and the defendant is subsequently charged with the same offense or any offense required by Rule 21.3 to be joined with the charge dismissed, the defendant shall be entitled to have the subsequent charge dismissed with prejudice if not brought to trial within ninety (90) days from the time provided in Rule 28.1 (b), excluding only such periods of necessary delay as are authorized in Rule 28.3. Failure of a defendant to move for dismissal of charges under this rule prior to a plea of guilty or trial shall constitute a waiver of the defendant's rights under this rule.
(c) The dismissal of a charge with prejudice pursuant to subsection (d) of Rule 28.2 or subsection (b) of this rule shall be an absolute bar to a subsequent prosecution for the same offense or any offense required by Rule 21.3 to be joined with the charge dismissed.
COMMENT: This rule is new and is necessary to address the effect of a dismissal without prejudice. Under subsection (b), if charges are refiled after a previous dismissal without prejudice, the defendant must be retried within ninety (90) days from the date the dismissed charge is reinstated or the defendant is subsequently arrested or charged, whichever is earlier [ see Rule 28.1 (b)]. In addition, the statute of limitations must be considered in determining whether charges may be refiled.
RULE 29. SPECIAL PROCEDURES: PERSON SERVING TERM OF IMPRISONMENT
RULE 29.1. Prosecutor's Obligations.
(a) If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution in the State of Arkansas, he shall promptly seek to obtain the presence of the prisoner for trial.
(b) If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner's right to demand trial.
(c) Upon receipt from a prisoner of a demand for trial upon a pending charge, the prosecuting attorney shall promptly seek to obtain the presence of the prisoner for trial.