Appellant Christopher Branstice. second-degree stalking, two counts of first-degree terroristic threatening, and misdemeanor violation of a protection order, for which he was sentenced to concurrent terms of 120 months, 72 months, 72 months, and 259 days, respectively, in the Arkansas Department of Correction. On appeal, Branning argues that the circuit court erred in denying his motion to dismiss based on double-jeopardy grounds and his motion to dismiss based on speedy-trial grounds. In an unpublished opinion, the court of appeals reversed and dismissed Branning’s convictions for second-degree stalking and the first count of terroristic threatening based on double-jeopardy grounds; Branning’s speedy-trial argument was not addressed. Branning v. State, CACR 05-989 (Ark. App. Apr. 4, 2007). The State petitioned this court for review, contending that the decision of the court of appeals is in conflict with prior case law, and is therefore in error. We granted the State’s petition for review pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. See, e.g., Porter v. State,
Branning was arrested on December 3, 2003, and charged in Harrison District Court with four misdemeanors: harassing communications, terroristic threatening, carrying a weapon, and second-degree assault. Pursuant to an agreement with the State, Branning pled guilty on May 5, 2004, to carrying a weapon and second-degree assault. Branning was placed on a suspended sentence, and the State nol prossed the charges for harassing communications and terroristic threatening.
On January 27, 2005, in circuit court, the State charged Branning by amended information with six felony offenses:
(1) Stalking in the second degree, based on a course of conduct occurring between December 3, 2003, and June 7, 2004;
(2) Terroristic Threatening in the First Degree, Count One, based on conduct occurring December 3, 2003;
(3) Criminal Mischief in the First Degree, based on conduct occurring February 15, 2004;
(4) Criminal Trespass, based on conduct occurring May 1, 2004;
(5) Terroristic Threatening in the First Degree, Count Two, based on conduct occurring May 15, 2004; and
(6) Violation of an Order of Protection, based on conduct occurringjune 7, 2004.
Branning filed motions to dismiss based on double-jeopardy grounds and speedy-trial grounds. The circuit court denied both motions, concluding that double jeopardy was not implicated, given that the amended information did not reassert any charges underlying Branning’s district court convictions for carrying a weapon and second-degree assault. The circuit court also concluded that, “because the charges of harassing communications and terroristic threatening were nolprossed, a procedure that allows for the refiling of those charges, the State is entitled to proceed on those charges without being prevented from doing so by the double jeopardy (former prosecution) provisions of the Arkansas Constitution and the Arkansas Code Annotated § 5-1-110 — 112.” Further, the circuit court concluded that, while Branning was brought to trial more than one year after he was arrested, the State was not barred from prosecuting him because the period of delay was excludable under the speedy-trial rule.
Branning now brings this appeal. Because Branning alleges a double-jeopardy violation based on convictions for conduct occurring on December 3, 2003, the charges of terroristic threatening, count two, and violation of an order of protection, both of which occurred after December 3, 2003, are not at issue in this appeal. In addition, the first-degree criminal mischief and criminal trespass charges were severed and are not a part of this appeal. Thus, we address Branning’s double-jeopardy argument only as it applies to his charges for stalking in the second degree and terroristic threatening in the first degree, count one.
When reviewing a denial of a motion to dismiss for violation of the Double Jeopardy Clause, typically a question of law, a de novo review should be conducted. Winkle v. State,
Branning first argues that the circuit court erred in denying his motion to dismiss based on double-jeopardy grounds because he had already been charged and convicted of misdemeanors arising out of the same occurrence. He states that the nol pressing of the two charges was “obviously part of a plea agreement.” Accordingly, he argues that “he was placed in jeopardy for all events occurring on December 3, 2003,” and that successful prosecution of him in district court precluded him from being charged with the same acts at some later date, “as the element in a multi-element stalking charge.” He states that he was charged twice in two courts for the same thing and was convicted both times. Thus, he claims that the State is barred from prosecuting him in circuit court.
The State argues that it was not barred from prosecuting Branning in circuit court, pursuant to this court’s holding in McKinney v. State,
Branning next argues that the circuit court erred in denying his motion to dismiss the case against him due to a violation of the speedy-trial rules. We recently stated in Yarbrough v. State,
Under Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. Ark. R. Crim. P. 28.1(c) (2006); Gamble v. State,350 Ark. 168 ,85 S.W.3d 520 (2002); Doby p. Jefferson County Circuit Court,350 Ark. 505 ,88 S.W.3d 824 (2002). If the defendant is not brought to trial within the requisite- time, the defendant is entided to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1 (2006); Gamble p. State, supra; Doby v. Jefferson County Circuit Court, supra. 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. Gamble v. State, supra; Doby v. Jefferson County Circuit Court, supra.
In the case before us, Branning was arrested on December 3, 2003. On February 1, 2005, Branning filed a motion to dismiss for violation of his speedy-trial rights based on a scheduled trial date of February 2, 2005. We have held that the filing of a speedy-trial motion tolls the running of the time for a speedy trial under our rules. Yarbrough, supra. Here, the State concedes that Branning made a prima facie showing of a speedy-trial violation, and that the burden shifted to the State to show the delay was the result of the defendant’s conduct or was otherwise justified.
On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under our speedy-trial rules. Yarbrough, supra; Cherry v. State,
At Branning’s request, the circuit court granted a continuance from November 5 to December 3, 2004, a period of 28 days. Delays resulting from continuances given at the request of the defendant are excluded in calculating the time for speedy trial. Ark. R. Crim. P. 28.3(c); Ferguson v. State,
Subtracting the nol pros and continuance periods (51 and 28 days, respectively) from the overall 426-day period leaves 347 days, well within the one-year period of the speedy-trial rule. Thus, the circuit court did not err in denying Branning’s motion to dismiss on speedy-trial grounds.
Affirmed.