Gamble v. State

85 S.W.3d 520, 350 Ark. 168, 2002 Ark. LEXIS 476
CourtSupreme Court of Arkansas
DecidedSeptember 26, 2002
DocketCR 01-766
StatusPublished
Cited by12 cases

This text of 85 S.W.3d 520 (Gamble v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gamble v. State, 85 S.W.3d 520, 350 Ark. 168, 2002 Ark. LEXIS 476 (Ark. 2002).

Opinion

Jim Hannah, Justice.

Petitioner Tyrone Gamble contends that his right to speedy trial was violated and seeks a writ of prohibition. In addition, Gamble argues that the trial court forced him to choose between his right to speedy trial and his right to counsel; therefore, the continuance he requested should be charged against the State. We have jurisdiction of this matter under Ark. Sup. Ct. R. l-2(a)(3) (2002).

On February 13, 1999, Gamble was arrested on theft by receiving charges by the Jonesboro Police Department. The State filed its information on January 28, 2000. Gamble was ordered to appear on February 4 for arraignment and February 7 for trial, and he failed to appear on both days. On February 11, Gamble appeared without counsel, and a trial date was set for February 14, 2000. Gamble appeared on February 14, again without counsel. The trial court gave Gamble the opportunity to proceed or to request a continuance. Gamble requested a continuance. On May 8, 2000, Gamble’s motion for a continuance was granted, and the trial was reset for August 14, 2000. Gamble requested a second continuance, and the trial was reset for December 11, 2000. The trial court granted a third motion for continuance on December 8, and the trial was reset for May 22, 2001. Gamble filed a motion to dismiss for speedy trial, and the trial court denied that motion on May 7, 2001. On May 21, 2001, Gamble filed a motion for continuance and petition for a writ of prohibition alleging a speedy-trial violation.

Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R. Crim. P. 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. Once a defendant establishes a prima facie case of a speedy-trial violation, i.e., that his or her trial took place outside of the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999).

Pursuant to Ark. R. Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000); Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255 (1998) (citing West Memphis Sch. Dist. No. 4 v. Circuit Court of Crittendon County, 316 Ark. 290, 871 S.W.2d 368 (1994)). The writ will not be granted unless it is clearly warranted. Ibsen, supra; Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993).

Gamble was arrested on February 13, 1999, and the State had twelve months to bring him to trial. Because February 13, 2000 fell on a Sunday, the State’s deadline for speedy trial was the next weekday after the deadline. Thus, the petitioner should have been brought to trial by February 14, 2000. Gamble has established a prima facie case in that 814 days had elapsed since his arrest by the time the court heard his motion to dismiss for speedy-trial violation. We must determine the appropriate exclusion periods, if any, within that period.

This court has held that when the defendant is scheduled for trial within the time for speedy trial, and the trial is postponed because of the defendant, that is “good cause” to exclude the time attributable to the delay. Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991). Delays resulting from continuances requested by the defendant should not be charged against the State. Ferguson, supra.

On February 14, 2000, Gamble requested a continuance. The trial was reset for August 14, 2000. On August 14, 2000, Gamble requested a second continuance, and the trial was reset for December 11, 2000. Gamble requested a third continuance, and the trial was reset for May 22, 2001. On May 7, 2001, Gamble’s motion to dismiss for speedy trial was denied. The period between February 14, 2000, and May 7, 2001, should be excluded in calculating the speedy-trial time because all of the delays during that period resulted from Gamble’s requests. The total number of days during that period is 448 days. Subtracting the total number of days during that period from the total time of 814 days shows that 366 days can be counted for the speedy-trial time. Since twelve months from the date of arrest fell on a Sunday, the State was allowed an extra day to bring Gamble to trial. Further, in an order tolling speedy trial, the trial court found that beginning February 2, Gamble had avoided and absented himself from process. Gamble failed to appear on February 4 and February 7. Gamble appeared at his arraignment on February 11. The days between February 2, the date Gamble was found to have avoided and absented himself from process, and February 11, the date when Gamble appeared at his arraignment, a total of 9 days, should not be charged against the State. Subtracting the nine days from 366 days shows that 357 days can be counted for speedy-trial time. Thus, the State complied with the speedy-trial rules, and the trial court had jurisdiction to hear the case on February 14, 2000.

Gamble argues, however, that the continuance granted on February 14, 2000, should be charged against the State. To support this argument, Gamble relies on Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). In Glover, the petitioner was charged with the crime of rape on June 12, 1990. Id. On August 13, 1990, counsel was appointed and trial was set for January 29, 1991. Id. The petitioner’s counsel learned that his secretary was related to the victim, and he filed a motion to withdraw. Id. On February 22, a second attorney was appointed, and the trial was reset for July 31, 1991. Id. The petitioner filed a motion to dismiss since he had not been brought to trial within twelve months. Id. The State argued that the period from December 21, 1990, through February 22, 1991, the period when the petitioner was without counsel, was excludable as a delay for good cause. Id. The State contended, and the trial court found, that the two-month period was an excludable period because the petitioner did not move to proceed pro se. Id. The State argued that the petitioner could have gone to trial on the date that it was originally set. Id. We disagreed and wrote:

The effect of adopting such a position would be to force defendants to choose between, their constitutional right to be represented by counsel and their constitutional right to have a speedy trial.

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Cite This Page — Counsel Stack

Bluebook (online)
85 S.W.3d 520, 350 Ark. 168, 2002 Ark. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamble-v-state-ark-2002.