author: Tom Glaze, Justice.

text:
    Laveris Darnell TOWNSEND v. STATE of Arkansas
    CR 01-822
    85 S.W.3d 526
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002
    [Petition for rehearing denied October 31, 2002.]

      Clark & Spence, by: George R. Spence, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Laveris Townsend was convicted of aggravated robbery, rape, and being a felon in possession of a firearm, and was sentenced to a total of ninety-five years. We accept jurisdiction of this appeal because it involves significant issues needing clarification of the law.

Townsend was originally charged with two counts of aggravated robbery, multiple counts of rape, being a felon in possession of a firearm, and being a habitual offender. The charges stemmed from two robberies in Fayetteville: one at the Red Roof Inn on October 1, 2000, and the second at the Hampton Inn on October 10, 2000. The two cases were severed for trial, and the Hampton Inn robbery was tried first.

Immediately prior to Townsend’s first trial, on January 23, 2001, Townsend’s attorney, Joel Huggins, filed a motion to withdraw. At a hearing on the motion, Huggins informed the court that he had discovered just the night before that Townsend had filed a civil lawsuit against him in federal court. In that lawsuit, Townsend alleged that Huggins had given him bad advice and had conspired with the Fayetteville Police Department to deprive Townsend of his civil rights. Huggins asked the trial court to permit him to withdraw from further representation of Townsend because of an irreconcilable conflict of interest. The trial court denied the motion, opining that Huggins was a competent attorney and that Townsend would “suffer no prejudice whatsoever” if Huggins continued to represent him.

Townsend was subsequently tried and convicted for the Hampton Inn robbery, but the court of appeals reversed his conviction in Townsend v. State, 76 Ark. App. 371, 66 S.W.3d 666 (2002) (Townsend I), on the grounds that the trial court had erred in denying Huggins’s motion to withdraw. In that opinion, delivered January 30, 2002, the court of appeals held that the trial court’s cursory examination of the situation warranted reversal, stating as follows:

Pursuant to Holloway [v. Arkansas, 435 U.S. 475 (1978)], the trial court has a duty, when an objection at trial brings a potential conflict of interests to light, to either appoint different counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant different counsel. We agree with [Townsend’s] argument that the trial court failed to do so in the case at bar. Here, the record shows that the trial judge made only a cursory investigation of the circumstances of the asserted conflict, and summarily ruled on the motion to be relieved in the absence of any information concerning the lawsuit filed against defense counsel. Consequently, we reverse and remand on this point.

Townsend, 76 Ark. App. at 373.

Townsend’s trial on the Red Roof Inn robbery and rape charges began on April 12, 2001, and Huggins renewed his motion to withdraw just before the trial commenced, reminding the court that he had alleged a conflict existed due to Townsend’s federal lawsuit. The trial court, however, noted that the federal court proceedings had been terminated, and denied Huggins’s motion. Townsend was convicted, and argues again in this appeal to our court that the trial court erred in denying Huggins’s motion to withdraw. He also asserts that the trial court erred in denying his motion to suppress various identifications made of him.

The main issue for this court to decide is whether the so-called “automatic reversal rule” established in Holloway v. Arkansas, supra, is applicable to Townsend’s case. The rule in Holloway applies when conflicts of interest arise from defense counsel’s being forced to represent codefendants over a timely objection. Here, on the other hand, the defendant (Townsend) caused a conflict with his attorney to exist when he sued Huggins while Huggins was representing him in a pending criminal case.

In Holloway, upon which Townsend relied in Townsend I and continues to rely in the present appeal, the Supreme Court considered whether or not removal of an attorney was mandated when the attorney simultaneously represented multiple codefendants in a single criminal case. Defense counsel in Holloway had objected that he could not adequately represent the divergent interests of three codefendants, but the trial court, without inquiry, denied counsel’s motions for the appointment of separate counsel. The Supreme Court reversed, holding that “joint representation of conflicting interests is inherently suspect,” because counsel’s conflicting obligations to multiple defendants “effectively sea[l] his lips on crucial matters” and make it difficult to measure the precise harm arising from counsel’s errors. Holloway, 435 U.S. at 489-90 (emphasis added). The critical error in Holloway was the trial court’s failure “either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Id. at 484 (emphasis added). It was on this basis that the Arkansas Court of Appeals reversed Townsend’s convictions in Townsend I.

However, after the Townsend I opinion, the Supreme Court decided the case of Mickens v. Taylor, 535 U.S. 162, (2002), wherein the Court, among other things, further explained and analyzed Holloway. In Mickens, the Court rejected the argument that automatic reversal is required whenever a trial court neglects a duty to inquire into a potential conflict. Instead, the Court held that “an actual conflict of interest” means “a conflict that affected counsel’s performance, as opposed to a mere theoretical division of loyalties.” Mickens, 122 S. Ct. at 1243 (emphasis in original). The Mickens Court, quoting Cuyler v. Sullivan, 446 U.S. 335 (1980), stated that “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Id. (citing Cuyler, 446 U.S. at 349-50) (emphasis in original). Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Thus, in the absence of an “actual conflict,” a defendant alleging counsel’s performance was deficient due to a conflict must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 1240. In other words, an analysis of a conflict of interest under Mickens requires the same kind of analysis — and the same kind of demonstration of prejudice — that is required under Strickland v. Washington, 466 U.S. 668 (1984), as opposed to the presumption of prejudice (and the consequent automatic reversal) that was explained in Holloway.

In Holloway, one attorney was forced to represent three codefendants on the same charges; the problem was that the attorney felt hampered in his ability to cross-examine one defendant with confidential information he had learned from the other defendants. As discussed above, the Holloway Court concluded that the presumption of prejudice was justified because joint representation of conflicting interests is inherently suspect. Thus, according to the Mickens Court, Holloway creates an automatic reversal rule only where defense counsel is forced to represent codefendants over a timely objection, unless the trial court has determined that there is no conflict. Here, however, the nature of the conflict present in Townsend’s case is distinguishable from the kind of conflict described in Holloway. Townsend’s “conflict” is of his own making; it does not involve multiple representations of codefendants by a single attorney, but instead occurred when Townsend filed a lawsuit against his lawyer. Thus, we must determine whether or not Townsend has demonstrated prejudice from the trial court’s refusal to permit Huggins to withdraw.

Before reaching this analysis, we additionally note that this Strickland-type determination of the existence of prejudice, required by Mickens, is in keeping with our own holdings. In Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001), an attorney-disqualification case, we held that this court reviews a trial court’s decision to disqualify an attorney under an abuse-of-discretion standard. There, this court first noted Supreme Court cases holding that where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. In addition, the Wilburn court stated the following:

The cornerstone principle in all conflict cases is whether prejudice will result to the client as a result of the conflict of interest. See Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). That prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical. See Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990); Sheridan v. State, supra.

Wilburn, 346 Ark. at 143.

Prejudice will be presumed from a counsel’s conflict of interest only when the defendant demonstrates that counsel actively represented conflicting interests. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002) (citing Cuyler v. Sullivan, supra; Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995)). See also Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001) (holding that prejudice is presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s peformance). In the absence of a showing of prejudice, we will find no abuse of discretion in the trial court’s decision to deny counsel’s motion to withdraw.

Here, Townsend fails even to allege that Huggins’s performance was deficient; his argument is limited to the trial court’s failure to inquire further about the alleged conflict. However, even if Townsend had attempted to argue that Huggins’s performance was deficient, a review of the trial proceedings reveals otherwise. Huggins’s conduct at trial was professional and thorough. In addition, the federal lawsuit had been dismissed by the time these charges came to trial, so any potential conflict between Townsend and Huggins was obviated. In sum, Townsend failed to prove that he was in any way prejudiced by his attorney’s performance, and without such a showing, under Mickens, the trial court’s failure to inquire further into the alleged conflict of interest cannot constitute grounds for reversal. Additionally, insofar as Townsend v. State, 76 Ark. App. 371, 66 S.W.3d 666 (2002), is inconsistent with this opinion, we overrule that decision. ■

For his second point on appeal, Townsend argues that the trial court erred in denying his motion to suppress the various identifications made of him, contending that these identifications were the result of an illegal detention. Specifically, he asserts that his initial contact with police lasted more than fifteen minutes. On this issue, Ark. R. Crim. P. 3.1 provides as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Townsend argues that, because he was detained for a total of thirty-two minutes, his initial detention was in excess of the fifteen minutes permitted by the rule and therefore unlawful, and the subsequent identifications made of him on the basis of that stop should have been suppressed. In reviewing the trial court’s denial of a suppression motion, we make an independent examination based on the totality of the circumstances, and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997).

Fayetteville Police Detective Tim Franklin testified at the suppression hearing that he stopped Townsend because Townsend matched the description given of the suspect in both the Red Roof Inn and Hampton Inn robberies. After being stopped, Townsend repeatedly gave Franklin false names and social security numbers, and in fact, during the thirty minutes that he was being detained by the police, Townsend never offered his correct name.

Rule 3.1 allots an officer fifteen minutes or “such time as is reasonable under the circumstances.” Townsend repeatedly lied to the officer about his identity, so any delay in obtaining or verifying his identity was his own fault. A defendant cannot be allowed to abort or frustrate the process of justice by his own actions. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001); Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).

For the foregoing reasons, we affirm Townsend’s convictions.

        Mickens was not a multiple-representation case. There, Mickens had an appointed attorney who had previously defended the victim whom Mickens murdered. The judge appointing Mickens’s attorney did not know the attorney had represented the victim, nor did the attorney disclose the fact.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Kisha ILO v. STATE of Arkansas
    CR 02-274
    85 S.W.3d 542
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Bill Luppen, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Kisha Ilo was charged in the Faulkner County Circuit Court with possession of a controlled substance (marijuana) with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. Fler charges were the result of a search warrant executed on her home in Conway. She filed a motion to suppress the evidence on the ground that the police violated her constitutional rights by failing to knock and announce their presence prior to forcibly entering the residence. The trial court denied the motion to suppress. Thereafter, Appellant entered conditional guilty pleas, pursuant to Ark. R. Crim. P. 24.3(b), and was sentenced to six years’ imprisonment on each of the charges. She appealed the suppression issue to the Arkansas Court of Appeals, and it reversed the trial court’s ruling. See Ilo v. State, 76 Ark. App. 516, 69 S.W.3d 55 (2002). The State petitioned for review of that decision, and we granted the petition pursuant to Ark. Sup. Ct. R. 1-2(e). For the reasons outlined below, we affirm the trial court’s denial of suppression.

The record reflects that a search warrant was obtained on Appellant’s residence at 1906 Dave Ward Drive in Conway on January 19, 2000. It was executed that same date. The affidavit in support of the search warrant, filed by Investigator William Tapley of the Conway Police Department, set out the grounds for probable cause to believe that Appellant and her husband were engaged in ongoing sales of marijuana from their residence. The affidavit reflected that Tapley had conducted surveillance on the residence on several occasions over a period of approximately six weeks. During that time, Tapley observed heavy traffic coming to the residence for short periods of time. Many of the visitors would enter the residence and stay for only two or three minutes and then depart. On some of the occasions, only the passenger would enter the residence, while the driver waited in the car. From his training and experience as a narcotics investigator, Tapley recognized this type of traffic pattern as being consistent with the sale of narcotics.

On one occasion, about one month prior to obtaining the search warrant, Tapley approached the home to talk to the residents. While at the door, he smelled the distinct odor of burning marijuana coming from inside the residence. On another occasion, the day before he obtained the search warrant, Tapley and another Conway police officer, Investigator Tommy Balentine, observed two persons in a vehicle stop at the residence, enter the residence for approximately three minutes, and then leave. Thereafter, another Conway police officer stopped the vehicle for a motor-vehicle equipment violation. During the traffic stop, the occupants consented to a search of the vehicle, which revealed approximately one-quarter pound of marijuana. One of the occupants of the vehicle, George Weatherly, told the officers that he had been buying marijuana from the residence for approximately one year and that he had seen a handgun at the residence during the drug transactions on at least two occasions and as recently as two weeks ago. Based on this information, the officers sought and obtained a search warrant on Appellant’s home.

Both the affidavit and the warrant were prepared by the Conway Police Department. The affidavit contained a request to dispense with the requirement that the officers knock and announce their presence before entering. That request was based on the information supplied by Weatherly about the presence of a handgun inside the residence. The warrant itself, however, did not contain a no-knock provision. According to Tapley’s later testimony, the issuing magistrate approved the no-knock entry. He explained that the omission of a no-knock provision from the face of the search warrant was due to a clerical oversight on the police department’s part.

During the hearing below, Appellant challenged the veracity of the information concerning the firearm. Appellant presented testimony from Weatherly, who denied ever having told the officers that he had seen a firearm inside the residence during his past drug transactions. He further denied ever seeing any firearm inside Appellant’s residence. Tapley and Balentine, however, maintained that Weatherly had supplied such information. Both officers testified that they interviewed Weatherly on January 18, and that he admitted that he had been purchasing marijuana from Appellant’s residence for about one year. In response to questions about the presence of firearms in the home, Weatherly told them that he had seen a handgun at the residence during his drug transactions on at least two occasions, the most recent being two weeks earlier.

At the conclusion of the suppression hearing, the trial court granted Appellant’s request to submit a brief on the suppression issue. In her post-hearing brief, Appellant argued for suppression of the evidence on the grounds that (1) the warrant itself did not provide fór a no-knock entry; (2) there was no credible evidence from which the officers could deduce the presence of firearms on the premises; and (3) the alleged presence of a firearm two weeks earlier was too remote in time, or stale, to justify the no-knock entry. After receiving briefs from both sides, the trial court entered a written order denying the motion to suppress, based upon the testimony and the evidence presented at the hearing.

The court of appeals reversed the trial court’s ruling on the ground that the evidence of the presence of a firearm in the home two weeks earlier was stale. Accordingly, the court of appeals concluded that such stale information did not amount to a reasonable suspicion that knocking and announcing under the particular circumstances would be dangerous. The court of appeals thus held “that merely seeing a handgun at a residence two weeks earlier is too remote in time to predicate a fear that such handgun will continue to be present and endanger officers, absent any other compelling facts to suggest otherwise.” Ilo, 76 Ark. App. at 521, 69 S.W.3d at 59. We granted the State’s petition for review of that decision. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002); Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). We begin our analysis of the issues on appeal by examining the relevant law regarding the use of no-knock entries.

In Wilson v. Arkansas, 514 U.S. 927, 929 (1995), the Supreme Court established that the “common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” The Court observed that not every entry must be preceded by an announcement; rather, the Court stated that “[t]he Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934.

Two years after Wilson, the Supreme Court revisited the knock-and-announce principle. In Richards v. Wisconsin, 520 U.S. 385 (1997), the Court established the following guidelines:

In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.

Id. at 394-95 (citations omitted). The reasonableness of the officers’ decision to enter without knocking and announcing their presence must be evaluated as of the time they entered the premises. Id. It is the duty of the courts to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. Id.

Where the court determines that the police were not justified in conducting a no-knock entry because there were no exigent circumstances present, exclusion or suppression of the evidence obtained in the search is the appropriate remedy. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648, cert. denied, 528 U.S. 927 (1999). Upon review of a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Id. With this standard in mind, we turn to the merits of Appellant’s arguments.

For her first point, Appellant argues that the trial court erred in refusing to suppress the evidence because the search warrant did not specifically authorize a no-knock entry. We agree with the court of appeals that a search warrant need not contain a specific provision dispensing with the requirement to knock and announce because the reasonableness of the officers’ decision to make a no-knock entry must be evaluated as of the time that the warrant is executed. The Supreme Court addressed this issue directly in Richards, 520 U.S. 385. There, the officers specifically asked for a provision that would have given them permission to execute a no-knock entry. The magistrate refused to include such a provision in the warrant. The magistrate’s refusal, however, did not end the inquiry, as the Court held that the reasonableness of the officers’ decision to conduct a no-knock entry “must be evaluated as of the time they entered [the premises].” Id. at 395. See also Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999). Thus, even if the warrant had contained a provision authorizing the officers to conduct a no-knock entry, the judicial review would be the same, i.e., whether the information known to the police created a reasonable suspicion that knocking and announcing their presence would be dangerous. Accordingly, we agree with the State and the court of appeals that the failure to include this language in the warrant is not fatal.

For her second point, Appellant argues that the trial court erred in denying suppression because there was no credible evidence that a firearm had been seen on the premises. She bases this argument on Weatherly’s testimony that he had never seen any firearms at the residence and that he never told the police otherwise. We reject this argument because this court has repeatedly held that issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the trial court. See, e.g., Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Any conflicts in the testimony are for the trial judge to resolve, as it is in a superior position to determine the credibility of the witnesses. Cook, 345 Ark. 264, 45 S.W.3d 820; Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). Obviously, in denying the motion to suppress, the trial judge believed the testimony of the two officers over that offered by Weatherly. It was within his province to do so.

For her final argument, Appellant argues that the information known by the officers regarding the presence of a handgun at Appellant’s residence is too stale to amount to the reasonable suspicion required under Richards. The court of appeals agreed with Appellant that the fact that a handgun was seen at the residence two weeks ago was too stale or too remote in time to support the officers’ reasonable suspicion of danger.

The State, on the other hand, contends that the affidavit contained facts demonstrating reasonable suspicion that would justify a no-knock entry. The State asserts that the court of appeals was viewing the issue too narrowly. Specifically, the State argues that the evidence of the firearm’s presence two weeks earlier must be viewed together with the evidence that Weatherly saw a handgun on two separate occasions over the course of a year. The State asserts that the totality of the evidence demonstrates an ongoing threat of potential danger. We agree with the State’s analysis.

Both this court and the court of appeals have addressed the issue of staleness as it relates to the determination of probable cause to obtain a search warrant and as it relates to the diminishment of probable cause resulting from a delay in the execution of a search warrant. See, e.g., Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000); White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994); Cardozo & Paige v. State, 7 Ark. App. 219, 646 S.W.2d 705 (1983). However, the issue of staleness of information that forms the basis for a no-knock entry is an issue of first impression in Arkansas. Even beyond Arkansas, this issue has received little attention. As such, we begin our analysis by reviewing the general principles concerning the staleness of information used to form probable cause.

There is no clear-cut test for determining when information has become stale. United States v. Smith, 266 F.3d 902 (8th Cir. 2001). Rather, the timeliness of the information depends on the circumstances of the case, including the nature of the unlawful activity. Id.; United States v. Johnson, 461 F.2d 285 (10th Cir. 1972). Moreover, the timeliness of the information is not considered separately; rather, “the length of the delay is considered together with the nature of the unlawful activity and in the light of common sense.” Gilbert, 341 Ark. at 605, 19 S.W.3d at 598 (quoting White, 47 Ark. App. at 134, 886 S.W.2d at 881 (citing Cardozo & Paige, 1 Ark. App. 219, 646 S.W.2d 705)). The following guidelines have been quoted often:

The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: The character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.

Id. at 606, 19 S.W.3d at 598 (emphasis added) (quoting Cardozo & Paige, 7 Ark. App. at 222, 646 S.W.2d at 707 (quoting State v. Loucheim, 296 N.C. 314, 323, 250 S.E.2d 630, 636 (N.C. 1979) (quoting Andresen v. Maryland, 24 Md. App. 128, 172, 331 A.2d 78, 106 (1975))). Thus, probable cause cannot be quantified by merely counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit; rather, time factors must be examined within the context of a specific case and the nature of the crime being investigated. United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied, 516 U.S. 903 (1995) (citing United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993)).

The significance of the nature of the activity was explained by the 10th Circuit in Johnson:

Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.

461 F.2d at 287 (emphasis added). The crimes of selling narcotics and illegal liquor have been recognized as types of ongoing criminal activity that is considered protracted or continuous, thus establishing a course of conduct. See United States v. Harris, 403 U.S. 573 (1971) (in a footnote, rejecting a claim of staleness where informant reported purchasing liquor from defendant within the past two weeks and there was a history of purchases over the past two years); Smith, 266 F.3d 902 (refusing to suppress evidence resulting from warrant where affidavit showed ongoing narcotics sales on three separate occasions three months earlier); Johnson, 461 F.2d 285 (refusing to suppress evidence where affidavit showed numerous sales of illegal liquor over a four-month period, with the last reported occasion being three weeks before the search warrant was obtained). Similarly, the crime of illegal possession of firearms has been recognized as an ongoing activity or course of conduct. See Maxim, 55 F.3d 394 (holding that information four months old, or even three years old, may supply probable cause for a search warrant for illegally possessed firearms, because possession is a continuing offense and because firearm enthusiasts tend to keep their guns for long periods of time).

We are only aware of two appellate decisions that have touched upon the issue of staleness within the context of no-knock entries. In United States v. Stewart, 867 F.2d 581 (10th Cir. 1989), the appellate court noted that the officers were in possession of only two specific facts regarding the defendant that were relevant to the execution of the warrant. One of those facts was that the defendant had been seen on one occasion with a pistol. The court held that this fact alone did not justify a no-knock entry. In a conclusory fashion, the court reasoned: “The information was stale and involved only one incident. The officer had no information that would have led them to believe that the defendant armed himself on a regular basis.” Id. at 585.

The other case is State v. George, 687 A.2d 958 (Maine 1997). Although the issue of staleness was not specifically discussed, the Supreme Court of Maine upheld a no-knock entry where the officers had information that the defendant had possessed a firearm two weeks prior to the entry. The court held that under the totality of the circumstances, which included the fact that the defendant’s residence was near a public school, the forced entry by the police was reasonable.

Here, the affidavit submitted by Investigator Tapley undisputedly demonstrates that ongoing drug sales were being conducted out of Appellant’s residence. George Weatherly told officers that he had been buying marijuana at the residence for about one year. During at least two of those drug transactions, Weatherly observed a handgun present at the residence. The most recent sighting of the handgun was two weeks prior to the search. We agree with the State that Weatherly’s statements demonstrate that the occupants of Appellant’s home had a history of conducting drug transactions with’ a firearm present during those transactions. As such, the officers’ suspicions that the firearm would be present when they executed the warrant were reasonable.

Furthermore, the determination of reasonable suspicion cannot be made in a vacuum. The officers making that decision will undoubtedly view the facts through their experience as police officers, using their training and common sense. Thus, so long as there are particular facts, not just generalizations, demonstrating that an announced entry would be dangerous to the officers or others, the police are entitled to view those particular facts within thé parameters of their experience and common sense. “[P]olice officers need not ignore the insights gleaned from their experience on the beat. Such general insights — background facts .— when combined with particularized facts can form the basis for reasonable suspicion,” United States v. Grogins, 163 F.3d 795, 798 (4th Cir. 1998). Under the totality of circumstances present in this case, we cannot say that the trial court erred in denying the motion to suppress on the ground of staleness.

Finally, although we affirm the trial court’s denial of the motion to suppress based on the arguments before us, we are compelled to note that the vast majority of cases considering this issue have held that the mere presence of firearms on the premises, standing alone, is not sufficient to justify dispensing with the knock-and-announce requirement of the Fourth Amendment. See, e.g., Grogins, 163 F.3d 795; United States v. Moore, 91 F.3d 96 (10th Cir. 1996); United States v. Bates, 84 F.3d 790 (6th Cir. 1996); United States v. Lucht, 18 F.3d 541 (8th Cir.) cert. denied, 513 U.S. 949 (1994); United States v. Marts, 986 F.2d 1216 (8th Cir. 1993); Stewart, 867 F.2d 581. We do not discuss whether there was other sufficient evidence to justify the no-knock entry in this case, because this specific issue was not raised below, nor is it argued on appeal.

The record reflects that Appellant’s argument below was confined to the issue of the timeliness of the information about the presence of the firearm at her residence. Appellant did not argue below, nor even on appeal, that the threat posed to officers was invalid because the mere presence of a firearm on the premises, no matter how recent, is insufficient to justify a no-knock entry. In other words, Appellant challenged only the remoteness of the evidence, i.e., that there was no indication that the gun would still be there when they executed the search warrant. We do not view this as encompassing the argument that the threat of officer safety was not valid because there was no evidence that the occupants of the residence would use a gun against the officers. We will not reverse a trial court’s suppression ruling based on an argument that was never raised or otherwise developed during the hearing below. “It is well settled that where an appellant does not advance an argument to the trial court as part of the motion to suppress, we will not consider it for the first time on appeal.” Bunch v. State, 346 Ark. 33, 42, 57 S.W.3d 124, 129 (2001) (citing McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2000)); Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000), cert. denied, 531 U.S. 1199 (2001).

Moreover, this court will not make an appellant’s argument for him, nor raise an issue sua sponte unless it involves the jurisdiction of this court to hear the case. See Shields v. State, 281 Ark. 420, 664 S.W.2d 866 (1984) (holding that although this court was not persuaded that the trial court properly admitted expert testimony, it would not address the issue because it was not raised on appeal). See also Phillips v. Earngey, 321 Ark. 476, 481, 902 S.W.2d 782, 785 (1995) (holding that “[i]t is axiomatic that we refrain from addressing issues not raised on appeal”). Such an exception is not present here. Accordingly, we will not address this issue.

Circuit court affirmed; court of appeals reversed.


author: Ray Thornton, Justice.

text:
    CITY OF SILOAM SPRINGS v. BENTON COUNTY, Arkansas: W. Cary Anderson, Benton County Judge; Scott Douglass, Benton County Collector; Gloria Spring-Peterson, Benton County Treasurer
    01-869
    85 S.W.3d 504
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Harrington, Miller, Neihouse & Krug, P.A., for appellant.

      Robin Green, for appellees.
   Ray Thornton, Justice.

Appellees, Benton County and its officials (“Benton County”), petitioned for a declaratory judgment that Act 219 of 1963 (“Act 219”) is an unconstitutional violation of Amendment 14’s prohibition against the passage of any local or special act because it apportioned ninety percent of the road tax funds collected from within the corporate limits of Rogers, Bentonville, and Siloam Springs to those cities. The trial court granted appellees’ motion for summary judgment, declaring Act 219 unconstitutional as to the cities of Siloam Springs and Bentonville. The trial court granted Rogers’s motion to dismiss, allowing the ninety percent apportionment to Rogers to remain in effect, pursuant to Act 174 of 1920.

Appellant, Siloam Springs, appeals the trial court’s order, contending that the trial court erred in granting summary judgment declaring Act 219 unconstitutional without requiring Benton County to meet its burden of proof that the act was not rationally related to achieving a legitimate objective of state government. We conclude that the trial court erred in granting the motion for summary judgment declaring Act 219 unconstitutional.

Each county in the state is authorized to levy a three-mill tax on all taxable property in the county. Ark. Code Ann. § 26-79-101 (Repl. 1997). Unless otherwise allowed by law, fifty percent of the three-mill tax collected on property within the corporate limits of a city is apportioned to the city, in accordance with Ark. Code Ann. § 26U9-104 (Repl. 1997), which provides in pertinent part:

(a) Of the amount collected from the annual three mill road tax in any county in the state, the county courts shall apportion one-half (V2), except rvhere a greater amount is allowed by law, of the amount collected upon property within the corporate limits of any city or town for use in making and repairing the streets and bridges in the respective cities or towns.
(b) The collector of any county in the state shall pay into the treasury of the respective cities or towns the amount so apportioned by the county court, which amount shall be expended exclusively by the cities or towns for the purpose of making and repairing the streets and bridges within the corporate limits of the town or city.

Id. (emphasis added).

In 1920, the Arkansas General Assembly passed Act 174 to provide that the Benton County Court shall apportion ninety percent of the road funds collected solely within the corporate limits of the City of Rogers. Act 174 provides in pertinent part:

Be It Enacted by the People of the State of Arkansas:

Section 1. That the County Court of Benton County, Arkansas, shall at the term held at which the Collector of Benton County, Arkansas, makes his annual settlement, apportion ninety per cent of the Road funds collected under Amendment Number Five (5) of the Constitution of the State of Arkansas, which are collected within the corporate limits of the City of Rogers in Benton County, Arkansas, to be used by the City Officials for the purpose of constructing and maintaining of the streets, alleys, bridges, and culverts of said city.

Id.

In 1926, the people adopted Amendment 14 that reads as follows:

The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.

Ark. Const, amend. 14.

On March 8, 1963, the legislature adopted Act 219, which provides:

“Section 1. That the County Court of Benton County, Arkansas, shall at the term held at which the Collector of Benton County, Arkansas, makes his annual settlement, apportion ninety per cent (90%) of the road funds collected under Amendment Number Three (3) of the Constitution of the State of Arkansas, within the respective corporate limits of Rogers, Bentonville, and Siloam Springs in Benton County, Arkansas, to said cities respectively, to be used for the purpose of constructing and maintaining streets, alleys, bridges and culverts in such cities.”

Id.

From the year 1920, Rogers has been apportioned ninety percent of the tax collected from within its corporate limits, and from 1963 to the date this lawsuit was filed, the cities of Benton-ville and Siloam Springs have also been apportioned ninety percent of the tax collected from within their corporate limits.

For their first point on appeal, appellants argue that the trial court erred when it granted the County’s motion for summary judgment. Specifically, appellants contend that the County did not meet its burden of proof in establishing that Act 219 is unconstitutional within the meaning of Amendment 14 of the Arkansas Constitution.

The appropriate standard of review when reviewing a grant of summary judgment has often been announced by this court:

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

Worth v. City of Rogers, 341 Ark. 12, 20, 14 S.W.3d 471, 475 (2000). See also Ark. R. Civ. P. 56(c)(2).

Amendment 14 provides that the “General Assembly shall not pass any local or special Act.” In Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988), we stated:

Amendment 14 prohibits the general assembly from passing local or special act. An act is special if by some inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate. A local act is one that applies to any division or subdivision of the state less than the whole.

We further stated in Board of Trustees, supra:

Statutes are presumed not to be unconstitutional, and they will not be struck down unless they conflict with the Constitution “clearly and unmistakably.”

Id. (citations omitted). We also stated that

[classification among geographical or political subdivisions is permitted if the general assembly could have had a rational basis for it, and the fact that the classification includes only one city does not necessarily mean that it is “local” in the constitutional sense.

Id. (citations omitted).

In determining a challenge to the constitutionality of a statute, we have adopted a well-established standard as to the burden required to declare a legislative act unconstitutional. We articulated this standard in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), where we stated:

Under the rationality standard of review, we must presume the legislation is constitutional, i.e.[J that it is rationally related to achieving a legitimate governmental objective.
[This presumption] imposes upon the party against whom it is directed the burden of proving the unconstitutionality of the legislation, i.e.[,] that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.

Id.

Applying these rules to the present case, Benton County had the burden of proving that the act was not rationally related to a legitimate governmental purpose. Streight, supra; see also McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Notwithstanding our well-established standard requiring that the party challenging the constitutionality of a legislative act must meet this burden-of-proof requirement, Benton County sought a declaration that Act 219 is unconstitutional on its face because of perceived similarities between this case and City of Little Rock v. Campbell, 223 Ark. 746, 268 S.W.2d 386 (1954) and Street Improvement Districts Nos. 482 and 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931). The trial court relied on these cases in granting summary judgment in favor of Benton County.

It is clear that Benton County, as the party challenging the constitutionality of the act, had the burden of proving that Act 219 is unconstitutional under Streight, supra and McCutchen, supra. With its motion for summary judgment, it cited Ark. Code Ann. § 26-79-104, Act 219, Amendment 14, and made an argument that case law, including Campbell, supra, and Hadfield, supra, established that it was entitled to judgment as a matter of law without requiring a showing that there was no rational basis for the act. Its contention was that Act 219 was a prima facie violation of Amendment 14 because it was special legislation similar to that prohibited by Campbell, supra, and Hadfield, supra. We note that no showing was made, by affidavit or otherwise, that these three cities, Rogers, Bentonville, and Siloam Springs, were treated any differently than other similar cities in Benton County or elsewhere in the state.

Benton County’s citations to Campbell, supra, and Hadfield, supra do not operate as a substitute for meeting its burden of showing that the act is unconstitutional because it is not rationally related to achieving a legitimate governmental objective. We recently restated that requirement in McCutchen, supra, where we stated in pertinent part:

McCutchen further asserts that if an act, on its face, applies to only one geographic subdivision of this state, it is per se unconstitutional as a violation of Amendment 14. To the contrary, this court has repeatedly held that merely because a statute ultimately affects less than all of the state’s territory does not necessarily render it local or special legislation.
Instead, we have consistently held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act.

McCutchen, supra (emphasis added) (citations omitted).

While there was argument between counsel whether a rational basis might or might not exist, neither party submitted affidavits or other evidence in support of their arguments. Benton County had the burden of showing that the act was not rationally related to achieving a legitimate objective of state government. McCutchen, supra. At oral argument, in response to a question whether there were cases to show when this burden shifted, Benton County indicated that it could not cite to any such case, and we know of none.

Therefore, we hold that, under Streight, supra and McCutchen, supra, Benton County did not meet its burden of proving that the act was not rationally related to achieving a legitimate governmental objective and that the trial court erred in granting summary judgment without requiring such proof.

For their second point on appeal, appellants argue that the trial court erred in finding as a matter of law that Act 219 was unconstitutional without making a finding whether the Act is rationally related to a legitimate governmental'purpose. As previously discussed, we have held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. McCutchen, supra. This point on appeal is complimentary to the point we have just considered, and is addressed by our earlier analysis.

We conclude that the trial court erred in granting Benton County’s motion for summary judgment,' and we reverse and remand.

       The trial court determined that Rogers could receive a ninety percent apportionment because Act 174 of 1920 preceded the adoption of Amendment 14 to the Arkansas Constitution.


text:
    Robert Wayne GRADY v. STATE of Arkansas
    CR 01-1061
    85 S.W.3d 531
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Scott Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

On May 4, 1999, appellant, Robert Wayne Grady, shot his wife, Angela Grady, while she slept in their home. After the shooting, appellant called 911 and confessed to the murder. Appellant then started several fires in their home. Next, appellant went to his brother’s house and told his brother that he had killed Angela. Finally, appellant purchased some camping equipment and attempted to flee the jurisdiction.

Appellant was stopped at a roadblock in Perry County and was arrested. He informed law enforcement officials that he had shot his wife. On July 1, 1999, appellant was charged with capital murder.

On July 20, 1999, the Circuit Court of Perry County ordered that appellant undergo a mental evaluation. After an evaluation at the Arkansas State Hospital, it was determined that appellant was unfit to proceed. Specifically, appellant was not able to assist in the preparation of his defense. On February 14, 2000, appellant was committed to the State Hospital for care and treatment until he was restored to fitness.

On July 13, 2000, officials with the Arkansas State Hospital informed the trial court that appellant was restored to fitness and that legal proceedings against him could continue.

On March 19, 2001, appellant’s case came to trial. At the close of the State’s case, appellant’s attorney made a general motion for directed verdict. The trial court denied this motion. During appellant’s case-in-chief, he argued that based on a mental disease or defect he was not able to form the requisite intent to commit capital murder. In support of his defense, appellant presented medical testimony. At the conclusion of his case, appellant’s attorney renewed his general motion for directed verdict. The trial court again denied the motion. The State then offered additional medical testimony to rebut appellant’s affirmative defense. Following the rebuttal testimony, the parties concluded their cases. At the close of the evidence, appellant’s motion for directed verdict was not renewed.

After deliberation, the jury rejected appellant’s affirmative defense and convicted appellant of capital murder. He was sentenced to life imprisonment without the possibility of parole.

On appeal, appellant seeks to raise only one point for our review. Specifically, appellant argues that the trial court erred when it denied his motion for directed verdict. Rule 33.1 of the Arkansas Rules of Criminal Procedure explains the procedure a criminal defendant must follow when making a proper motion for directed verdict. The rule provides:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of ah of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

Id. (Emphasis added.) We have explained that Rule 33.1 is strictly construed. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001).

As a threshold question, we consider whether the directed-verdict motion made by appellant’s attorney preserved for appeal the issue of the sufficiency of the evidence. At the close of the State’s case-in-chief, the following colloquy occurred:

State’s attorney: Your honor, with the admissions of State’s exhibits 1 through 26, the State at this time would rest.
* * *
The court: Any motions at this time?
Defense attorney: No, sir.
The court: Okay.
State’s attorney: Well, hang on.
Defense attorney: Your honor, at this time—
State’s attorney: No, wait a minute.
Defense attorney: Oh, I’m sorry. I was going to make one.
The court: You make your motion for a directed verdict and I’ll deny it.
Defense attorney: All right. I’ll make a motion.
The court: Are you ready?
Defense attorney: Yes.
The court: All right. Call your first witness.

This exchange was followed by the colloquy, which occurred at the close of appellant’s case:

Defense Attorney: Nothing further.
State’s Attorney: Nothing further.
Defense Attorney: Your honor, I want to renew my motion.
The court: We understand you’re now going to rest?
Defense attorney: Yes, sir.
The court: You can do it on the record.
Defense attorney: Subject to rebuttal.
The court: And if you’ll renew your motion.
Defense attorney: Yes, I do renew my motions.
The court: That motion is denied again. Okay.

Finally, at the close of the State’s rebuttal, the following colloquy occurred:

State’s attorney: And, your honor, that’s all that we have for rebuttal. Thank you doctors.
The court: Any sur-rebuttal?
Defense attorney: No, sir.
The court: All right.
The court: AH right. Ladies and gentlemen, it is now my duty to instruct you on the law as it applies to the facts in this particular case.

After reviewing the various exchanges between the parties, we conclude that appellant’s attorney failed to properly preserve appellant’s directed-verdict motion for appellate review. First, appellant’s attorney failed to raise a specific directed-verdict motion. We have explained that in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001) (citing Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998)). We have also explained that the reason underlying our requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the trial court the option of either granting the motion, or, if justice requires, may allow the State to reopen its case and supply the missing proof. Webb v. State, 321 Ark. 51, 938 S.W.2d 806 (1997). Finally, we have held that a general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Beavers, supra.

In the case now before us, appellant’s attorney did not identify a specific element of the crime which he claimed the State failed to prove, but merely responded to the trial court’s prodding and stated “[A]ll right. I’ll make a motion [for directed verdict].” This motion does not assert a specific flaw in the State’s case. This general motion was renewed after appellant’s case-in-chief. In this renewed motion, appellant’s attorney did not assert that the evidence clearly established appellant’s affirmative defense, but rather simply stated “[Y]es, I do renew my motions.” Appellant’s motion for directed verdict did not comply with Rule 33.1, because the motion was general and did not inform the trial court of the specific issues in the State’s case that were being challenged. For that reason, the issue is not' preserved for appeal.

Additionally, our rules prohibit our review of appellant’s sufficiency argument because his attorney failed to renew the directed verdict motion at the close of all of the evidence. We have explained that the language in Rule 33.1 is stated in the conjunctive, clearly requiring that a motion for directed verdict be made at the close of the State’s case and again at the close of all of the evidence. See Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). We have also explained that the failure to challenge the sufficiency of the evidence at both the close of the State’s case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict on appeal. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).

In Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994), we declined to address appellant’s sufficiency argument when his attorney failed to renew his motion for directed verdict after the State presented rebuttal evidence. We explained:

Although we have not previously had before us a case in which the motion was renewed at the conclusion of the defendant’s case-in-chief but not after rebuttal evidence, the plain language of the rule requires the latter, and we interpret the rule stricdy. Accordingly, we decline to consider the argument.

Id. (Internal citations omitted.)

The case subjudice is on all fours with Christian, supra. Appellant’s attorney made a motion for directed verdict at the close of the State’s case-in-chief and renewed this motion at the close of his case-in-chief. The State then presented a rebuttal to appellant’s case. At the close of the State’s rebuttal, which was “the close of all of the evidence,” appellant’s attorney failed tonenew his motion for directed verdict. This failure precludes appellate review.

Because appellant’s motion for directed verdict did not comply with the requirements of Rule 33.1, and because we require a strict interpretation of that rule, we conclude that we cannot consider appellant’s sufficiency argument on appeal.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


author: Jim Hannah, Justice.

text:
    Tyrone GAMBLE v. STATE of Arkansas
    CR 01-766
    85 S.W.3d 520
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      John W. Walker, for appellant.

      Mark Pryor,' Att’y Gen., by; Katherine Adams, Ass’t Att’y Gen., for appellee.
   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. In the present case petitioner would have to forfeit his right to a speedy trial because through no fault of his own, he was not represented by counsel and was not willing to go to trial without counsel. We refuse to adopt this position.

Id. (Emphasis added.)

The facts in the instant case can be distinguished from the facts in Glover. In Glover, the delay was a result of the State’s failure to promptly appoint counsel for the petitioner. Here, the delay was a result of Gamble’s failure to obtain representation. When Gamble was arraigned on February 11, 2000, he indicated that he did not need the court to appoint counsel for him, and the court encouraged Gamble to seek representation for trial on February 14, 2000.

Moreover, in the present case, Gamble had contact with at least three attorneys during the weeks immediately preceding his arraignment. Between February 13, 1999, and October 28, 1999, the date the State attempted to nol pros the case even though charges had not been filed, attorney Randall Miller appeared in court with Gamble on several occasions, as his attorney of record. On January 27, 2000, the State advised Miller that it was filing its information the next day, and that the case would be brought to trial within the next couple of weeks. On February 1, 2000, Gamble appeared with Miller at the prosecutor’s office and reviewed the State’s evidence. The prosecutor advised Miller, in Gamble’s presence, that Gamble was entitled to a continuance, and that the trial was set for February 7. On February 4, 2000, Miller appeared at a hearing and stated that Gamble had instructed him to tell the court that he no longer represented Gamble. The court allowed Miller to withdraw. Miller testified that both he and Gamble were aware that trial had been set for February 7, 2000. He also testified that it was fair for the State to believe that Gamble was aware of the trial set for February 7, and that Gamble did not want a continuance. On February 9, the prosecutor’s office received a fax from attorney John Walker which stated that he was representing Gamble. On February 10, Walker faxed the prosecutor’s office a letter stating that he would not be representing Gamble. On February 11, the date of arraignment, Gamble appeared in court with attorney Kenneth Torrance. Torrance stated that he was there on behalf of Gamble, but he was not acting as his attorney. Torrance also stated that he would like to represent Gamble, but since the trial was scheduled for February 14, he would not have time to prepare. On February 14, Gamble again appeared in court with Torrance, who maintained that he was there only to advise Gamble, but he was not Gamble’s attorney.

The trial transcript of February 14 indicates that the court gave Gamble several options for representation by counsel.

Court: Mr. Gamble, do you have a lawyer?
Gamble: No, I do not.
Court: You told Judge Laser you had the funds and ability to hire a lawyer last Friday. Are you capable of hiring a lawyer to represent you?
Gamble: Yes, I am.
Court: Well, hire a lawyer. Why have you not done so?
Gamble: I just received notice, that I had to appear in court. I was just arraigned Friday and being tried today.
Court: . . .it-appears to the Court that you were notified prior to February 4th — at least by yóur own testimony . . . and that you recently had conversations with Mr. Miller, who had apparently been representing you, and either he removed himself from the case or you discharged him. Which was it?
Gamble: ... we could not come to an agreement about attorney’s fee so he gave me the document . . . telling me that I needed to hire a lawyer.
*****
Court: Mr. Gamble, do you want to continue the case on your own motion until you have time to hire a lawyer and discuss your case with Mr. Torrance?
Gamble: No. í’m not going to do that.
Court: . . .You want to go to trial now without a lawyer and act as your own lawyer?
Gamble: No, I’m not saying that either.
*****
Court: Who represents you, Mr. Gamble? Are you going to represent yourself?
Gamble: Nobody represents me.
Court: ■ Did you discharge Mr. Miller?
Gamble: No, I did not.
Court: Then Mr. Miller will be here shortly to represent you. Do you want a public defender to represent you?
Gamble: They do not have adequate time to represent me.
Court: Court: If you’re telling me you can’t hire a lawyer, I’ll appoint the public defender.

The court gave Gamble three options for representation. The court asked the petitioner if he wanted a public defender. He did not. The court asked Gamble if he was represented by Torrance. Torrance repeatedly stated that he was not Gamble’s attorney, though he continued to advise Gamble and object on Gamble’s behalf. Finally, the court asked Gamble if he wanted Miller to represent him. Gamble stated that he did not want Miller to represent him.

Gamble is not like the petitioner in Glover who had to forfeit his right to speedy trial through no fault of his own. Gamble was afforded his right to counsel, not once, but three times. Gamble had no counsel on February 14 because he refused to obtain counsel and because he refused every offer of counsel made by the court.

In Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979), we wrote:

It is widely recognized that the right to choose counsel may not be manipulated or subverted to obstruct the orderly procedures of the court or to interfere with the fair, efficient and effective administration of justice, particularly when a change of choice is made on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel. (Citations omitted.)

Id.

Miller withdrew on February 4. Walker represented Gamble on February 9, but he declined representation the very next day. Torrance accompanied Gamble to court on February 11 and February 14, made arguments for Gamble, and objected on Gamble’s behalf, all the while maintaining that he was not Gamble’s attorney. Gamble was told to seek representation on February 11 for trial on February 14, and he failed to do so. Gamble hired and fired attorneys shortly before his trial date and tried to cause a delay in court by appearing without counsel. Gamble knew that speedy trial was about to run, and he refused to obtain counsel. Gamble cannot now complain that he had to choose between his right to counsel and his right to a speedy trial. Gamble, by his own actions, put himself in the position of either going to trial without counsel or asking for a continuance. Gamble was given ample opportunity to obtain counsel, and the delays resulting from his failure to obtain counsel are not delays which can be charged to the State.

Writ of prohibition denied with prejudice.


text:
    Derrick Rumunda MOODY v. ARKANSAS COUNTY CIRCUIT COURT, Southern District
    CR 02-39
    85 S.W.3d 534
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Morse U. Gist, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Petitioner Derrick Rumunda Moody seeks a writ of prohibition asserting that the trial court has lost jurisdiction to try him on delivery of a controlled substance because he was not brought to trial within the twelve month period under Ark. R. Crim. P. 28. The criminal information was filed in this case on September 23, 1998. Moody filed his motion to dismiss on May 2, 2001. We hold that the periods of delay attributable to Moody, properly excluded between September 23, 1998 and May 2, 2002, fail to reduce the time within which he was to be brought to trial to twelve months. The petition is granted. Jurisdiction of this petition is proper in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3).

Facts

The criminal information was filed against Moody on September 23, 1998. Moody was arrested on September 29, 1998. He appeared at a hearing on September 30th. At the next docket call, Moody was not present because he was incarcerated elsewhere. Thereafter, it appears Moody was in the Department of Corrections and then was free and working in Hot Springs. Later, Moody was returned to Arkansas County. His case was first set for trial on January 14, 1999, but was reset for trial eighteen times. He now alleges the trial court has lost jurisdiction to try him. We agree.

Writ of Prohibition

We first note that Moody has named the individual judge as the respondent to his petition. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). The petition will therefore be treated as one against the circuit court. Pike, supra.

Moody seeks a writ to prohibit the circuit court from proceeding against him on the criminal charges. A writ of prohibition stops the trial court from proceeding. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). 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).

Speedy Trial ■

Under Ark. R. Crim. P. 28.1, an accused must be brought to trial within twelve months unless necessary delay occurs as authorized under Ark. R. Crim. P. 28.3. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). This means that a defendant must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.

Motion to Dismiss

Moody first moved for a dismissal under speedy trial Rule 28.1 by a motion on May 2, 2001. The motion asserted that Moody was to be tried outside the twelve-month period in violation of Ark. R. Crim. P. 28. From the docket, it appears the motion to dismiss was set for hearing on October 8, 2001, then continued to October 22, 2001. From a motion to continue the hearing, it appears that the hearing on the motion was continued to October 29, 2001, although nothing is noted in the record or docket as occurring on that date. On October 29, 2001, a hearing on the motion was held, and Moody’s counsel asserted trial was set outside the allowed twelve-month period. The State then sought and was given an opportunity to review the transcript and docket. The hearing ended without any action on the motion by the court. 'On November 15, 2001, Moody filed a renewed motion to dismiss asserting he was to.be tried in violation of Rule 28. On November 29, 2001, an order was filed on the motion which states simply, “The Defendant’s Motion to Dismiss is denied.”

It is well settled that a defendant does not have a duty to bring himself to trial; rather,- the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998); Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996). Once a defendant shows that his trial will take place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (July 5, 2002); Ferguson, supra; Gooden, supra.

Excluded Periods and Running of Speedy Trial

We note at the outset that the State argues that there is no issue as to any period excluded by the trial court because Moody failed to object and obtain a ruling by the trial court on the disputed excluded periods. The law on this issue is found in Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998), wherein this court stated:

It is true, that in criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Moreover, it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997); Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). Because the trial court never ruled on an objection to the exclusion of this time period, the argument is not properly before us on appeal.

Strickland, 331 Ark. at 405. The record and the docket fail to reveal that any excluded period was objected to at the time it was noted in the record or on the docket. However, in his motion to dismiss, Moody asserted that his incarceration between September 3, 1998 and September 5, 1999, was to be counted against the running of speedy trial, and that there was no excluded period during the following times:

1. 9/23/98 through 1/14/99 113 days
2. 3/11/99 through 8/16/99 158 days
3. 11/6/00 through 1/29/01 84 days
4. 3/30/01 through 5/2/01 34 days
389 days

Naturally there is no issue as to Moody’s incarceration between September 3, 1998 to September 23, 1998, because the criminal information was not filed until September 23, 1998. Pursuant to Strickland, Moody did raise the issue of the above noted periods before the trial court. The motion was denied.

When we analyze a speedy-trial issue, we add the number of excluded days under Ark. R. Crim. P. 28.3 and apply those days to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant. To carry out this analysis, we must determine the number of days between the date when time commences to run against speedy trial under Rule 28 and the date on which the defendant alleges he was to be brought to trial in violation of the rule.

Moody was arrested after the criminal information was filed in this case. Therefore, time commences to run from the date the criminal information was filed. Ark. R. Crim. P. 28.2. The criminal information was filed on September 23, 1998. Moody filed his motion to dismiss on May 2, 2001, alleging he was about to be brought to trial in violation of his right to a speedy trial. Thus, we must determine the number of days that may be excluded, if any, between September 23, 1998 and May 2, 2001. From September 23, 1998, to the end of that year amounts to ninety-nine days. There were 365 days in 1999 and 366 days in 2000. From January 1, 2001, to May 2, 2001, amounts to 122 days. The sum of these four numbers is 962 days.

Moody has thus demonstrated that as of the date he filed his motion to dismiss, he was 597 days beyond the twelvemonth limitation under Rule 28.1. He has thus shown a prima facie case of a speedy-trial violation, and the burden shifts to the State to show that the 597 days of delay were caused by the defendant or otherwise justified. Ibsen, supra. We must then determine whether the excluded periods allowed under Rule 28.3 exceed this number and thereby allow Moody to yet be brought to trial within twelve months.

The parties agree that the period between September 23, 1998 and January 14, 1999, the first trial date, is not an excluded period. Therefore, during this period, time was running on speedy trial.

The next period we consider is from the trial date of January 14, 1999, to the next trial date of March 11, 1999. This period resulted from a continuance of trial dates requested by Moody. Moody agrees that this period is to be excluded. This is a period of fifty-six days. When we subtract this sum from 597, we are left with 541 days.

We next consider the period from March 11, 1999 to the next trial date of May 20, 1999. The trial was continued to May 20, 1999 due to “older case disposed of.” This notation appears on a Notice dated March 11, 1999, and on the docket on March 15, 1999. This is a period of seventy days. The State argues that this is an excluded period. There is nothing in the record or on the docket to explain why seventy days were required to dispose of another case. There is nothing in the record or on the docket to explain the reason for the continuance with particularity as required under Ark. R. Crim. P. 28.3(b)(1). The State argues that this explanation complies with Ark. R. Crim. P. 28.3(b), which allows for exclusions due to docket congestion when the court explains with particularity the reason the trial docket does not permit trial on the original trial date. Rule 28.3(b)(l-3) provides:

(b) The period of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted:
(1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled;
(2) the court determines that the delay will not prejudice the defendant; and
(3) the court schedules the trial on the next available date permitted by the trial docket.

In Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989), Rule 28.3(b) we discussed a seventeen-day continuance by the trial court because a capital murder case had already been commenced and would carry over past Stanley’s trial date. There, the trial court entered an order on Friday, June 6, the day that the trial in Stanley was to commence, explaining that an already commenced capital murder trial would carry over into the next week of June 9. This court stated: “This constitutes the type of an order contemplated by Rule 28.3(b). It was sufficient to exclude the period from June 9 until June 26, the date of the next criminal docket.” Stanley, 297 Ark. at 587. We have no such order in the present case. Flere, it appears that the case was continued seventy days due to docket congestion without any further explanation than “older case disposed of.” A good many older cases might be disposed of in a seventy-day period. No explanation was provided in the docket or in the record to show why this case was continued for such an extended period. This court has stated that the law is well settled that congestion of the trial docket without more is not just cause for breaching the speedy-trial rule. Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). See also, Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987); Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979); Rule 28.3(b). The written order or the docket must detail the reason for the continuance. Hicks, supra. As in Hicks, no explanation was offered as to why the case could not be tried during the week immediately following the case that was to be disposed of. Rule 28.3(b)(3) requires that where a trial is continued due to docket congestion, the trial court must schedule the trial on the next available date permitted by the trial docket. There is nothing in the record or on the docket to show this was done. Thus, this period counts against time running on speedy trial and is not an excluded period.

We must next consider a problem that appears nine times in this case. As noted above, the trial was continued to May 20, 1999. However, there is nothing in the record or on the docket sheet to indicate that any activity occurred in the case on May 20, 1999. Rather, the first mention of activity appears seven days later on May 27, 1999. On that date, the trial court sent out a Notice that the case was continued to June 17, 1999 due to docket congestion. We thus have a period of seven days where there is nothing on the docket sheet or in the record to show the trial court excluded the seven days. Rule 28.3(a) requires that excluded periods “shall” be set forth by the court in a written order or docket entry. The word “shall” is mandatory. Smith v. State, 347 Ark. 277, 61 S.W.3d 168 (2001). The State appears to assume that this time would simply be part of the continuance for a congested docket if docket congestion constitutes an excluded period. The problem is that there is nothing in the record or on the docket sheet to show that these seven days were ever excluded by the trial court. It is true that where the delay is caused by the defendant, this court has shown a willingness to exclude the time when there is at least some contemporaneous record of the proceedings reflecting the delaying act. Bradford v. State, 329 Ark. 620, 953 S.W.2d 549 (1997). In Bradford, the State attempted to exclude a period based primarily on a chronology of events to show the defendant was responsible for the delay. This court rejected that argument, noting the contemporaneous record did not reflect the reasons for the delay. There must be a record that the seven days were excluded by the trial court. There is none. These days do not constitute an excluded period.

The State argues that the period from May 27, 1999, to June 17, 1999, must be excluded because the trial court noted a congested docket as the reason, which the State argues is permissible under Rule 28.3. As discussed above, a congested docket alone is not just cause for breaching the speedy trial rule. Hicks, supra; Novak, supra; Harkness, supra. Thus, this period will not be excluded.

The period from June 17, 1999, to June 24, 1999, is unexplained and nothing in the record or docket sheet reflects this time was excluded. Thus, time was running against speedy trial. On June 24, 1999, the trial court sent out a notice that the trial was continued to July 29, 1999, at the State’s request. Nothing in the record or on the docket sheet shows this time was sought pursuant to Rule 28.3(d), or which allows excluded periods at the State’s request for certain reasons. This time ran against speedy trial.

However, on July 6, 1999, Moody filed a motion for a continuance. Moody concedes that the time from July 6, 1999, until the trial was reset on his motion for a continuance to October 7, 1999, is to be excluded. This is a period of ninety-three days. When ninety-three days are subtracted from 541 days, there are 448 days that must be excluded.

On October 7, 1999, Moody’s counsel appeared and informed the court that he had lost contact with Moody and had only spoken with him the day before through a girlfriend. The trial was continued to November 18, 1999, and Moody concedes that this is an excluded period. It amounts to forty-two days. When forty-two days are subtracted from 448, there are 406 days that the State must yet exclude.

Nothing in the record or on the docket sheet shows that the period from the trial date of November 18, 1999, until the next activity on November 24, 1999, was excluded. This time runs against speedy trial. Rule 28.3(c) requires that all continuances granted at a defendant’s request be to a date certain. The excluded period under the rule runs from the date the continuance is granted until that date certain. That date certain in this case was November 18, 1999.

A docket entry on November 24, 1999, shows that the trial was continued to January 13, 2000, at the defendant’s request. Moody argues this time may not be excluded because neither the record nor the docket entry show that he requested it. There is nothing in the record or the docket sheet to show that he objected to having this time excluded when the continuance was granted nor that this issue was raised to the trial court in his motion to dismiss. This time is properly excluded. Strickland, supra. This period is fifty days. When fifty is subtracted from 406 days, there are 356 days that must still be excluded.

The period from the trial date of January 13, 2000, until January 18, 2000, is not excluded in the record or on the docket. Time runs against speedy trial on these days.

• On January 18, 2000, there was a hearing in which the prosecutor represented that the defendant wanted the trial continued. The trial court then set the trial for February 24, 2000. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to thirty-seven days. When thirty-seven is subtracted from 356 days, 319 days are left.

On March 7, 2000, the trial court sent a Notice that the trial was continued to April 6, 2000, at the defendant’s request. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to thirty days. When thirty is subtracted from 319 days, 289 days are left.

Then on April 20, 2000, the trial court sent notice that the trial was continued to June 1, 2000, at the defendant’s request. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to forty-two days. When forty-two is subtracted from 289 days, 247 days are left.

The period from the trial date ofjune 1, 2000, until June 13, 2000, is not excluded in the record or on the docket. Time runs against speedy trial on these days.

On June 13, 2000, the trial court sent notice that the trial was continued to August 24, 2000, at the defendant’s request. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to seventy-two days. When seventy-two is subtracted from 247 days, 175 days are left.

The period from the trial date of August 24, 2000, until August 28, 2000, is not excluded in the record or on the docket. Time runs against speedy trial on these days.

On August 28, 2000, the trial court continued the trial to October 17, 2000, at the defendant’s request. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to fifty days. When fifty is subtracted from 175 days, 125 days are left.

The period from the trial date of October 17, 2000, until November 2, 2000, is not excluded in the record or on the docket. Time runs against speedy trial on these days.

On November 2, 2000, the trial court sent out a notice continuing the trial until January 18, 2001, because the “judge was ill.” The period from November 2, 2000 to January 18, 2001 amounts to seventy-seven days. Delays resulting from a judge’s illness are not excluded under Rule 28.3(a). Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991); Novak, supra.

The period from the trial date of January 18, 2000, until January 24, 2000, is not excluded in the record or on the docket. Time runs against speedy trial on these days.

On January 24, 2001, the trial court sent out a notice continuing the trial until March 8, 2001, at the defendant’s request. This period was not objected to nor raised below in the motion to dismiss. It is therefore an excluded period. It amounts to forty-three days. When forty-three is subtracted from 125 days, eighty-two days are left.

On March 8, 2001, the docket shows that the trial was continued to May 3, 2001, due to defendant’s request. However, a trial court notice dated March 28, 2001, indicates the continuance was due to docket congestion. Even if the fifty-five days from March 8, 2001, to May 2, 2001, when the motion to dismiss was filed, were excluded, the State would still be twenty-seven days beyond the permitted twelve months.

In summary, the total days from filing of the criminal information to filing of the motion to dismiss was 962 days. Subtracting 365 'days from 962 days results in 597 days the State needed to show were excluded. At best the State can show 570 days were excluded. That leaves the State twenty-seven days short. Moody could not be brought to trial within twelve months as required by Rule 28.

The petition is granted.


author: Per Curiam.

text:
    Roger Dale BARRETT v. STATE of Arkansas
    CR 02-584
    85 S.W.3d 551
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      J. Eric Hagler, for appellant.
    No response.
   Per Curiam.

Attorney J. Eric Hagler moves this court for a rule on clerk to allow his entry of appearance as counsel for appellant Roger Dale Barrett. He shows this court that Barrett was convicted of capital murder and sentenced to life in prison without parole. His trial counsel was John Gross, and Gross filed a notice of appeal on Barrett’s behalf.

Eric Hagler was then retained by Barrett to pursue an ineffective-counsel claim under Rule 37 against Gross. However, Hagler concluded that he had to pursue a direct appeal first and tendered a trial transcript to the Supreme Court Clerk on April 18, 2002. The clerk refused to accept it, because Hagler was not the attorney of record.

The Supreme Court Clerk notified Gross that he was still counsel of record and needed to filed a motion for rule on clerk so that the late record could be filed. Gross did that, and the transcript was filed on June 37, 2002. A briefing schedule was then set. Appellant’s brief was due on August 6, 2002.

According to his motion, on July 26, 2002, Hagler contacted Gross about having Hagler substituted as attorney of record. Gross advised Hagler that he had filed a motion to substitute counsel on or about August 7, 2002. To date no such motion has been filed by Gross with the Supreme Court Clerk.

Attorney Gross is hereby ordered to file a motion for substitution of counsel within seven days of the date of this order. Failure to do so will result in an order to show cause why he should not be held in contempt of court. Because at this time Hagler’s motion for rule on clerk to enter an appearance is denied, his motion for an extension of time to file the appellant’s brief is moot.

A copy of this order shall be forwarded to the Supreme Court Committee on Professional Conduct.


text:
    Delarett CARTER v. STATE of Arkansas
    CR 02-948
    85 S.W.3d 552
    Supreme Court of Arkansas
    Opinion delivered September 26, 2002

      Maxie G. Kiser, for appellant.

      No response.
   Per Curiam.

Appellant Delarett Carter has filed a motion for rule on the clerk. The motion reflects that the judgment and commitment order was filed on February 25, 2002, and that the notice of appeal was timely filed on March 4, 2002. On May 30, 2002, counsel filed a motion for an extension of time to prepare the record for appeal. An order granting the extension was entered on June 4, 2002, ninety-one days after the notice of appeal was filed. The transcript was tendered in this court on August 29, 2002.

Pursuant to Ark. R. App. P. — Civ. 5(a), the record on appeal must be filed with this court’s clerk within ninety days from the filing of the first notice of appeal. The time for filing the record may be extended, provided that an order of extension is issued within the original ninety-day period. See Ark. R. App. P. — Civ. 5(b). An order of extension was entered in this case, but it was not timely under Rule 5(b), as it was entered one day late.

Appellant’s attorney, Maxie G. Kiser, Managing Public Defender for the Eleventh Judicial District, West, admits responsibility for the order granting the extension being tardily entered, resulting in the late tendering of the record on appeal. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Dwills v. State, 347 Ark. 294, 62 S.W.3d 359 (2001) (per curiam); Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).