Asher v. State

776 S.W.2d 816, 300 Ark. 57, 1989 Ark. LEXIS 418

• Court: Supreme Court of Arkansas
• Decided: September 25, 1989
• Docket: CR 88-197
• Status: Published

Opinions

Robert H. Dudley, Justice.

The sole issue in this speedy trial case is whether the old eighteen-month limitation or the new twelve-month limitation applies to this case. We hold that the new twelve-month limitation is applicable, and accordingly, issue a writ of prohibition.

The petitioner was arrested on February 19,1987. Upon the recommendation of a deputy prosecuting attorney, he was immediately released by a citation. See A.R.Cr.P. Rule 5.2. On March 9, 1987, a deputy prosecutor wrote to petitioner stating, “your case has been continued until further notice.” A similar letter was written to petitioner on April 15,1987. In fact, however, no case was pending because the prosecutor had not filed charges.

In a separate matter, on July 13,1987, this court issued a per curiam order which amended A.R.Cr.P. Rule 28.1 (c) to decrease the time limit for speedy trials from eighteen (18) months to twelve (12) months. The amendment provides:

Any defendant charged after October 1, 1987, in circuit court 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.

(Emphasis added.)

On October 9, 1987, after the amendment had gone into effect, the prosecutor finally charged petitioner with several counts of illegal drug activity. The trial court set the case for trial on October 13, 1988. Petitioner filed a motion in the trial court asking that the cases be dismissed for violation of the speedy trial rule. The motion was denied. Petitioner sought a writ of prohibition in this court. We granted a temporary stay for briefing of the matter, and now issue the Writ of Prohibition.

The State agrees with the petitioner that the time began to run on the date of arrest, February 19, 1987. See A.R.Cr.P. Rule 28.2(a). The parties’ only disagreement concerns which limitation is applicable. The petitioner accurately states that our rule is clear and definite. It provides, “any defendant charged after October 1, 1987,. . . shall be entitled to have the charge dismissed ... if not brought to trial within twelve (12) months. . . .’’The petitioner was charged after October 1,1987. The rule is not ambiguous and does not require interpretation. The twelve-month limitation applies, and the petitioner was not tried within that twelve-month period.

The State argues that such a literal reading of the rule leads to an absurd result. The argument is not convincing. The per curiam was issued on July 13,1987. It clearly provided that the twelve-month limit would apply to any defendant charged after October 1, 1987. Thus, there was a three and one-half month period between the per curiam announcing the amendment and the effective date of the amendment. The State could have charged petitioner at any time during that three and one-half month time and still had the benefit of the eighteen-month limitation. Instead, for some unexplained reason, the State waited until October 9, 1987, to charge the petitioner.

Writ granted.

Hickman, Hays, and Glaze, JJ., dissent.