State v. Sutton

553 P.2d 1216, 27 Ariz. App. 231, 1976 Ariz. App. LEXIS 585
CourtCourt of Appeals of Arizona
DecidedAugust 24, 1976
DocketNo. 1 CA-CR 1233
StatusPublished
Cited by3 cases

This text of 553 P.2d 1216 (State v. Sutton) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sutton, 553 P.2d 1216, 27 Ariz. App. 231, 1976 Ariz. App. LEXIS 585 (Ark. Ct. App. 1976).

Opinion

OPINION

WREN, Judge.

The appellant, Charles Sutton, was found guilty of burglary, first degree, and sentenced to a term of not less than eight years nor more than fifteen years in the Arizona State Prison. He had waived trial by jury and submitted the issue of his guilt or innocence to the trial court based upon the preliminary hearing transcript and a polygraph examination. On appeal, he claims he was denied a speedy trial under the Arizona Rules of Criminal Procedure, and that the trial judge failed to comply with the requirements of State v. [233]*233Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), for submission on preliminary hearing transcripts.

SPEEDY TRIAL

Rule 8.2(c), Az.R.Crim.P., provides that a defendant who has been released from custody must be brought to trial either within 120 days of his initial appearance or within 90 days from his arraignment in the trial court, whichever is the lesser. Appellant, who was not in custody, made his initial appearance on March 10, 1974, and the 120 day period therefore expired on July 8, 1974. Furthermore, 90 days from appellant’s last arraignment, July 2, 1974, an arraignment that followed several remands pursuant to Rule 5.5, Az.R.Crim.P., expired on September 30, 1974. The lesser of these two dates is July 8, 1974. Appellant was not brought to trial until December 16, 1974. Therefore, appellant’s rights under Rule 8 were violated unless the 120 day period was enlarged by any appropriately excluded periods of time under Rule 8.4.

We find there are four separate such periods of time. They are:

1. Notice of change of judge filed by appellant;
2. Delays occasioned by remands to justice court pursuant to Rule 5.5;
3. Delays occasioned by a Rule 11, competency proceeding, and
4. Delay occasioned by consideration of a special action petition.

The parties do not dispute that the period from the filing of the notice of change of judge to the date of transference to another judge, totaling three days, was an appropriately excluded period.

Nor does appellant dispute the inclusion of the length of the delay occasioned by the two remands to justice court for a new determination of probable cause pursuant to Rule 5.5. He argues, however, that the excluded periods of time for the remands ran from the date of the superior court’s order granting a remand to the date of the new finding of probable cause made by the justice court. On the other hand, the State argues that the more appropriate exclusion should run from the date of the filing of the motion for a new determination of probable cause to the date appellant was again arraigned on the resulting information following the new determination of probable cause. We note that the appellant’s argument is supported by the recent Division Two case of State v. Harris, 25 Ariz.App. 76, 541 P.2d 402 (1975). That case, in discussing a speedy trial violation, considered the excludable period of time under 8.4(b) to have run from the date of the Superior Court order directing a remand to the date of an indictment was returned.

The State urges that State v. Harris, supra, fails to acknowledge the delays occasioned by the time-consuming but necessary procedures involved in dealing with a remand situation, and that the entire period of time should be considered as “resulting from a remand for new probable cause determination under Rules 5.5 . . .” Rule 8.4(b).

We are persuaded by the State’s argument. The Rules of Criminal Procedure set out a cohesive and structured time frame within which a motion for new determination of probable cause and subsequent filing of informations and arraignments are to occur. See Rules 5.5(d), 13.-1(c), 14.1(a), 35.1. These rules contemplate some delay in the consideration of the motion and in the proceedings when cases are transferred from Justice Court to Superior Court. We think the rules have attempted to achieve arbalance between the orderly administration of cases in the court system with a defendant’s right to a speedy trial. There are built-in sanctions for violation of the time limits for proceedings on remand. We therefore hold that appropriately excludable time limits under Rule 8.-4(b) run from the date of filing of a motion for new determination of probable cause to the date of arraignment on the resulting information or indictment. See State ex rel. Berger v. Superior Court, 111 [234]*234Ariz. 335, 529 P.2d 686 (1974) (excludable time counted from the date motions are filed).

In the instant case, appellant’s first motion for determination of probable cause was filed on April 11, 1974. He was arraigned on the resulting information May 8, 1974. The exact filing date of his second motion for a new determination of probable cause is not reflected in the record; however, a minute entry of the court, dated May 22, 1974, set this motion for oral argument. We, therefore, will assume for purposes of this appeal that the time period ran from May 22, 1974. The arraignment on this information was on July 2, 1974. A total of 68 days is thus excludable under Rule 8.4(b).

Next, the State argues that 110 days are excludable as the result of a Rule 11 hearing. Rule 8.4(a) does exclude “[d]elays occasioned by or on behalf of the defendant, including, but not limited to, delays caused by an examination and hearing to determine competency. . . .” The appellant argues, however, that a Rule 11 proceeding did not take place in this case. He points out that a competency determination was ordered in two other cases in which appellant was a defendant, but not this one. The competency hearing in those cases, however, had been ordered at appellant’s request. Moreover, all the appellant’s cases were being considered by Judge Harold D. Martin. Judge Martin properly ruled that the appellant’s trial in this case would not proceed until the competency question, raised in the other two cases being considered by him, had been resolved.

A trial judge who has reasonable grounds to question a defendant’s competency to stand trial may properly invoke, sua sponte, a procedure to determine whether he understands the nature of charges pending against him and can assist in his own defense. State v. Bradley, 102 Ariz. 482, 433 P.2d 273 (1967). See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, IS L.Ed.2d 815 (1966); Tillery v. Eyman, 492 F.2d 1056 (9th Cir. 1974). Furthermore, Rule 11.1, Ariz.R.Crim.P., states that no criminal defendant shall be tried while he is unable to understand the proceedings against him.

The delay occasioned by the competency ruling in the other cases in which appellant was a defendant is a properly excluded period of time in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
553 P.2d 1216, 27 Ariz. App. 231, 1976 Ariz. App. LEXIS 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sutton-arizctapp-1976.