State v. Gottschalk

138 P.3d 1170, 2006 Alas. App. LEXIS 102, 2006 WL 1868485
CourtCourt of Appeals of Alaska
DecidedJuly 7, 2006
DocketA-8798
StatusPublished
Cited by4 cases

This text of 138 P.3d 1170 (State v. Gottschalk) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gottschalk, 138 P.3d 1170, 2006 Alas. App. LEXIS 102, 2006 WL 1868485 (Ala. Ct. App. 2006).

Opinions

OPINION

COATS, Chief Judge.

Criminal Rule 45(c)(1) provides that the time for bringing a defendant to trial is calculated “from the date the charging document is served upon the defendant.” This case raises the question of whether, when the defendant is in court on one charge and is given a copy of a new indictment in a separate case by the prosecutor at the direction of the judge, the defendant has been served with this indictment for purposes of the speedy trial rule. We conclude that this does not constitute “service” for purposes of the rule.

Factual and procedural background

Gottsehalk was convicted in 1998 of felony driving while intoxicated and other related offenses. In 2003, Gottsehalk was on probation from these earlier convictions. Gott-schalk’s probation officer filed a petition to revoke Gottsehalk’s probation based upon information that Gottsehalk had violated his probation by consuming alcohol and driving under the influence. Gottsehalk was arrested in Bethel on the probation violations and brought to Anchorage.

Gottsehalk was brought to court on a petition to revoke his probation. While at the courthouse, the assistant district attorney informed the court, and Gottsehalk, that Gott-sehalk had been indicted in Bethel on a recent felony DUI which had been a basis for the petition to revoke. Superior Court Judge Michael L. Wolverton instructed the prosecutor to obtain information about the Bethel case for Gottsehalk and his attorney. In a court proceeding on the petition to revoke on July 9, 2003, at the direction of the court, the prosecutor gave Gottsehalk and his attorney a copy of the indictment for felony DUI in the Bethel case.

[1171]*1171On October 8, 2003, Gottschalk was served in an Anchorage jail with the warrant issued by the superior court for the felony DUI indictment. On October 9, the Anchorage court set bail on this charge for Gottschalk and appointed the Public Defender Agency to represent him. Gottschalk was ultimately transported to Bethel and arraigned on the indictment on November 10, 2003. Superior Court Judge Dale O. Curda concluded that Criminal Rule 45 had started on October 8, 2003, when Gottschalk was served with the warrant. Gottschalk’s counsel objected, arguing that he was served for Criminal Rule 45 purposes when he received the copy of the indictment in open court on July 9. Gott-schalk filed a motion to dismiss based upon Criminal Rule 45.

Following an evidentiary hearing, Judge Leonard R. Devaney granted Gottschalk’s motion to dismiss. Judge Devaney concluded that Gottschalk was served with the charges when, at the direction of Judge Wol-verton, Gottschalk received the charging documents in open court from the prosecution. The State filed a petition for review challenging this decision. We granted review. We now reverse Judge Devaney’s decision granting Gottschalk’s motion to dismiss.

Analysis

According to Criminal Rule 45(c)(1), the time for bringing a defendant to trial begins running when the charging document is served. However, the rules does not define when a defendant is “served.”

Prior to 1993, the 120-day period began on “the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first.”1 In 1993, the rule was amended at the request of the State. The State pointed out that under the former rule a police officer, by making an arrest, would initiate the speedy trial rule. The State contended that the decision to initiate a criminal prosecution should be made by a State prosecutor, not the police. And the speedy trial period should start only after the prosecutor had initiated charges.2

Gottschalk argues that he was served for purposes of Criminal Rule 45 when, on July 9, the prosecutor gave him a copy of the Bethel indictment in open court at the direction of the judge. He argues that all of the parties were aware that he had received a copy of the indictment in a court proceeding. He argues that this constitutes service. Judge Devaney agreed with Gottschalk’s argument.

The State argues that all it did was provide Gottschalk with an informational copy of the indictment because the indictment was relevant to the petition to revoke Gott-schalk’s probation. The State points out that Gottschalk’s attorney had been appointed to represent him only in the probation revocation proceeding, not on the Bethel DUI indictment. And Judge Wolverton took no action on the indictment. He did not arraign Gottschalk, set bail, or appoint an attorney to represent him on the new charge. The State argues that, under the criminal rules, the court had to assert personal jurisdiction over Gottschalk on the Bethel indictment in order to start the prosecution and start Criminal Rule 45. The State argues that to start Criminal Rule 45, Gottschalk needed to be formally served with the charges under Criminal Rule 4 or Criminal Rule 9, or formally arraigned under Criminal Rule 10. The State argues that, just because a prosecutor, police officer, or other agent of the state informally provides a copy of charges to a defendant, the State has not formally commenced a prosecution as required by the criminal rules.

Gottschalk’s case highlights a defect in Criminal Rule 45. Under the rule, as long as the State did not serve him with the Bethel indictment, the State could hold Gottschalk for an indeterminate period of time on the probation revocation petition without ever starting Criminal Rule 45. The superior [1172]*1172court had issued a warrant for Gottschalk’s arrest based upon the Bethel indictment. The State informed us at oral argument that if Gottsehalk were to be released on the petition to revoke probation, the Department of Corrections would have asked the superior court to schedule a hearing at which Gott-schalk could be served with the Bethel warrant.

Professor LaFave points out that Alaska is the only state to have a speedy trial rule which is dependent on the service of the charging document. Other states initiate their speedy trial time periods from arrest (Arizona), entry of plea (Colorado), indictment or information (Idaho), arraignment (Kansas), or first appearance (Maryland) (for example).3 Thus, other states have not had to address the issue of when the charging document is served for purposes of a speedy trial rule.

The purpose of Criminal Rule 45 is to protect a defendant’s right to have the criminal charges which the State has brought against him resolved within a reasonable period of time. Although the particular time period is to some degree arbitrary, the purpose of the rule is to set an exact time when the rule starts and an exact time when it ends. Unfortunately, the rule does not establish when a charging document is “served.” This flaw in the rule creates uncertainty about when the time period begins.

Gottsehalk has a strong argument that he was served when the State gave him a copy of the charging document in court at the direction of the judge. There is an argument that the Bethel District Attorney’s Office had constructive notice that Gottsehalk would be given a copy of the indictment. But the logic of Gottschalk’s argument would extend to many other situations.

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Related

Martin Dennis Victor IV v. State of Alaska
516 P.3d 506 (Court of Appeals of Alaska, 2022)
State v. Carlin
249 P.3d 752 (Alaska Supreme Court, 2011)
State v. Gottschalk
138 P.3d 1170 (Court of Appeals of Alaska, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
138 P.3d 1170, 2006 Alas. App. LEXIS 102, 2006 WL 1868485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gottschalk-alaskactapp-2006.