Dupree v. State

871 S.W.2d 570, 316 Ark. 324, 1994 Ark. LEXIS 151

• Court: Supreme Court of Arkansas
• Decided: March 14, 1994
• Docket: CR 92-1364
• Status: Published

Opinions

.

Robert H. Dudley, Justice.

This is a speedy trial case. Appellant was charged with delivery of cocaine, a felony, on March 4, 1991. The trial court had a duty to bring appellant to trial in twelve months unless there were delays that constituted excludable periods of time. A.R.Cr.R Rule 28.1(b). The trial court set appellant’s trial for March 3, 1992. On that day, March 3, 1992, appellant was granted a continuance to April 7, 1992. This continuance constituted an excludable period of thirty-five days. No action was taken on April 7, the date set for trial. On April 10, the case was continued on appellant’s motion until May 21, 1992. This continuance constituted an excludable period of forty-one days. The two continuance periods together amounted to seventy-six days of excludable time. On May 21, or one year and two days after he was charged, appellant moved to dismiss the case for lack of speedy trial. The trial court denied the motion. Appellant was tried and convicted. We reverse and dismiss.

Appellant was not tried within the time specified by the speedy trial rules. Upon motion by the Attorney General, this court remanded the case to the trial court to settle the record about what occurred to prevent the scheduled trial from taking place on April 7, 1992. The reason for the delay from April 7 to April 10 is critical. However, rather than settling the record upon the remand, the trial court dismissed the remand. Since the record reflects that appellant was not tried within the allowable time, and the trial court refused to settle the record, the Attorney General was left with no choice other than to confess error and recognize that appellant’s conviction must be reversed and dismissed. The confession of error is well taken.

Reversed and dismissed.

Corbin, J., not participating. Hays, J., dissents.