Cooksey v. State

Inc., necessary Grindle, portion v. The not be State. would quently incurred opinion compensation, question concerned the award of just order obtain attorney’s fees cases. accordingly be disallowed. condemnation (2) specifically provides 72(k) Since Rule administra- confident We are for the circumstances under which such 72(k)(4), our Rule tion Civil awarded, fees be are to the result abuses, prevent vigilant to judges will opinion remains the same. is not taxed that the State insure expenses. needlessly-incurred petition granted, rehearing The appraisers’ award of The of an denial opinion and the is modified to the extent reversed, and these attorney’s fees provided above. court in remanded cases are value of the reasonable establish order to appellants’ appraisers rendered

services attorney. remanded. Reversed and FITZGERALD, participating. J., not REHEARING FOR

ON PETITION COOKSEY, Appellant, John Charles for a re petitioned The State has por hearing seeking clarification of opinion Alaska, Appellee. reads: court’s which STATE of provisions of 72(a) Civil Rule makes No. procedure the exclusive

Civil Rule 72 Supreme Court Alaska. domain, except where otherwise eminent July 19, 1974. provided expressly . states:

Rule 72(a) procedure the condemnation The power eminent property under the rules, by these governed shall be domain except provided in this rule. as otherwise in State correctly points out that Petitioner Acres, Chuckwm, 1,163 Less, More Inc., 1968), Rule (Alaska P.2d 72(a) has been construed follows: phrase rules” refers to all of “these Rules other rules of Alaska and Administration.

Court Procedure pro- phrase “except as otherwise that Civil Rule vided in this rule” means proceed- govern 72 shall eminent domain procedure ings. specific Where provided by Rule then Civil procedure practice rules other available, they may to the extent that are applicable. hereby this construction of We affirm any inferences 72(a), and disavow from the might be drawn otherwise opinion in & quoted portion Stewart our

1253

OPINION

RABINOWITZ, Chief Justice. primary issues in this con- interpretation

cern of Criminal Alaska’s trial rule.

n Appellant Cooksey on was arrested John charged October with the dangerous weapon. crime of assault with a 27, 1972, against On October an indictment Cooksey arraignment was returned and was held October on Cooksey appeared next in 21, 1972, court on November at which time guilty. he entered a Trial was 20, 1973, February set for the week of in permit psychiatric order to evaluation of Cooksey. Cooksey his filed waiver of under Criminal until that date.1 Cooksey by was examined Dr. David Boyd, Boyd’s Dr. psychiatric evaluation, 5, 1973, January dated was re- February ceived defense counsel on Defender, Soli, Alex- Public Herbert D. report, Prior to the of this how- Defender, Bryner, Asst. Public ander O. ever, Boyd airplane Dr. was killed in an appellant. Anchorage, for death, In view accident. doctor’s Gen., necessary defense counsel considered it Atty. Juneau, Havelock, E. John application file a renewed for Balfe, Atty., Arthur D. Joseph Dist. D. Consequently, February evaluation. Talbot, Anchorage, for Atty., Asst. Dist. cancelled, trial date had to be and in order appellee. any problem to obviate Criminal Rule 45 RABINOWITZ, J„C. might Before which arise from the additional de- ERWIN, CONNOR, lay BOOCHEVER occasioned this second FITZGERALD, evaluation, 22, 1973, Cooksey, February on JJ. pertinent provides delay (1) period resulting in 1. Alaska Crim.R. 45 from part: defendant, concerning proceedings other including but not limited to motions charged (b) with either A defendant suppress, dismiss or examinations and hear- felony with- shall be tried a misdemeanor ing competency. . forth from the time set four months (c). section (7) periods delay good Other cause. begin (c) run- shall The time for light provision In for exclusion defendant, ning, without demand unnecessary (d)(1), subsection it was follows: Cooksey delay period to file a waiver for the (1) is ar- Prom the date the resulting competency from the examination rested. hearing. may A defendant’s waiver ex- period beyond provi- tend a of exclusion periods (d) following be ex- shall sions of Crim.lt. cannot shorten periods. computing for trial: such excluded the time cluded Cooksey August 28 deadline provided waiver which executed second upon to submit based al- part: was motions provi- leged violations his Defendant waives Thereafter, sions of Criminal Rule 45. February 20, from the date Cooksey the in- filed a motion to dismiss psychiatric evalua- until such as the time upon purported dictment based violation completed and his case re- tion can be argument, of that After the su- rule. oral pursuant calendared for trial to normal perior Cooksey’s court denied motion to procedures followed dismiss. Superior Alaska. Court State of subsequently examined September changed On Langdon Psychiatric Langdon Dr. guilty plea contendere to the Clinic, completed who weapon dangerous charge. assault with a Langdon apparently 1973. The Clinic plea presented superior This was the to copies superior to mailed of this the plea, a negotiated pursuant court as court, office, attorney’s the district and the plea negotia 11(e).2 Criminal Rule The office, public the defender’s with latter two five-year imposition tions called for aof receiving copies offices on imprisonment, of sentence and with two May 29, 1973. years suspended upon probation, one-half superior served, The of records the given already court indi- credit for time and cate that it did not a parole eligibility receive of Dr. left to the discretion of Langdon’s psychiatric report parole July until the board. As further of element 1973. At that expressly time a set negotiations, Cooksey was for the re to determine Cooksey’s compe- appeal superior served the right the proceed tence to to trial. After the hear- court’s denial of his motion to dismiss for ing and on Langdon’s the basis provisions Dr. re- violation the port, Cooksey competent was found superior ap Criminal Rule 45. The court stand trial. proved negotiated plea; the terms, sentenced in with its and August 8,

On accordance the court set September 4 as the trial imposed date and followed.3 11(e) provides part: judgment embody 2. Alaska Crim.R. in the and sentence will (1) attorney disposition plea provided the state the either the agreement for in the attorney may engage disposition for the defendant or another more favor- reaching discussions with a view toward able the defendant. agreement that, upon entering plea (4)If rejects plea agree- the of a the court the guilty charged ment, parties or nolo contendere to a the court shall inform the offense, personally offense or to or lesser related the this fact and advise the defendant open the state will move for dis- court the bound court not charges, plea agreement. missal other will or recommend the shall The court oppose imposition particular or opportunity the of a then afford the defendant sentence, plea, will or do both. withdraw his advise the de- (2) parties plea agreement plea persists If the reach a fendant if he in his whereby plea guilty guilty contendere, disposition or nolo contendere or nolo may will be entered defendant the ex- of the case be less favorable to the pectation specific contemplated sentence will be than that imposed charges plea agreement. or other before the court dismissed, will be then the court shall re- quire agreement sentencing proceedings, prosecu- the disclosure of 3. At open plea opposition court at the time the offered. tor declared that the state had no agreement Cooksey’s ap- Once the has been disclosed the reservation may accept reject agree- peal ruling. court or court’s ment, may accept or defer its decision to The record further shows that reject agreement ap- proceed until aof court allowed “to presentence report. peal” ruling. on (3) accepts plea agree- If the court ment, the court shall inform the defendant Caraway, reaching United States v. F.2d the merits of the Before grounds, appeal, it is vacated other F.2d 215 presented by this 1973), is dispose proce- to the case necessary threshold similar of a bar in these two In Cara- a defend- characteristics. question; namely, dural whether way, charged the two were following convic- defendants ant is entitled to importation pounds with the of mar- upon plea of six contendere. nolo pleaded ijuana. Both re generally A charge sought motion non-jurisdictional garded as a waiver of all suppress grounds all the constitutional plea provides in a case.4 The defects sup- evidence seized. After denial of may ac the defendant means motion, pression both were defendants willing knowledge guilt manifest granted permission to enter conten- for his ac responsibility ness assume pleas, express understanding dere with the like a contendere, A tions. of nolo deni- they able to guilt guilty plea, is both an admission suppression al motion. Court non-jurisdictional waiver all Appeals for the in a Circuit, Fifth defects.5 opinion thoughtful Judge authored Rives, noted such a situation are, however, There two characteristics “felt constrained” to honor special at bar con- of the case that merit agreement the the between court and lower First, part of the integral sideration. an defendant.6 by the negotiated plea accepted which was rea- The Fifth Circuit articulated two stipulation that court was the express recognizing agreement appeal sons the Cooksey right retained the to First, appeal for a limited the Fifth plea right. speedy despite trial issue of nolo rigid Second, was reluctant to establish a applicability of Circuit contendere. requiring undergo a speedy provision Rule 45 rule to trial of Criminal trial, costly complete a fully litigated at and futile ordeal of to the case at bar was easily prove state could its case Cooksey’s motion when the pre-trial held on been alleged evidence that was have to to dismiss. 846, 88, See, g., denied, States, L.Ed. 4. e. U.S. 364 U.S. 5 Lott v. 367 81 S.Ct. United ; (1961) (1960). 421, 1563, 69 L.Ed.2d 940 2d 81 S.Ct. 6 Presley, F.2d 163 v. 478 States United courts have conclu 6. Other reached similar Doyle, (5th 1973) ; v. 348 United States Cir. United in this situation. See Jaben v. sions (2d denied, Cir.), cert. 382 U.S. F.2d 715 States, aff’d, (8th Cir.), 381 F.2d 535 333 ; (1965) 843, 89, L.Ed.2d 84 86 S.Ct. 15 345, 214, 1365, L.Ed.2d U.S. 85 S.Ct. 14 ; Torres, (La.1973) v. So.2d 451 State 281 rehearing denied, 382 U.S. 86 S.Ct. Wright, Procedure 3 C. Federal Practice State, (1965) ; 114 v. L.Ed.2d Shreves 15 678, p. (1969). n. 28 § (Fla.App.1972). 269 So.2d Doyle, Grayson, 416 F.2d F.2d 715 5. In United States v. See United States (2d 1969) ; Cir.), denied, (5th United cert. 382 U.S. Cir. McGrath Judge 1968). (1965), States, 15 L.Ed.2d 402 F.2d 466 S.Ct. Friendly disapproved Cooksey argues appeal nolo a an that since idea plea. However, guilty a is not a formal admission issue after contendere Friendly nothing per Judge approval guilt, inconsistent the fol there is se noted with preserving lowing approaches from a convic two with the an notion opposed right appeal: upon plha a a as tion based such point agree. plea expressly reserving plea. guilty The inci ac- A We cannot cepted plea, in at least the court with the of a nolo Government’s dents contendere stipulation particular are criminal action consent or the facts as sofar concerned, charged two; plea are in the indictment are is as offered legal failing these, plea guilty. “The either of the defendant can the same as on plea simply guilty plea is as contendere stand his not of nolo effect put proof guilt without of the defendant the Government to its as to the conclusive developing guilty.” plea F.2d v. United a case of his own. Carnes as (10th Cir.), (footnote omitted) States, F.2d cert. at 719. evidence, illegally judicial sys- obtained and no other trial court the failure merely pre- respect express and the defendant seeks tem to condition would single, non-jurisdictional likely plea serve a issue. unintelligent render nolo Second, expressly á conditioning con- and invalid. appellate plea right tendere on a limited Additionally, only sought plea review was not demonstrates in- by Cooksey reviewed is the court’s “intelligently” so entered as to waive terpretation and administration

non-jurisdictional sought defect provisions four-month reviewed.7 question Criminal Rule This is a fully argued which was hear- entering plea by of a ac ing. Cooksey prevailed, If he had stage cused a critical in the criminal in- have been entitled dismissal of the plea proceeding. A or nolo con- dictment, and the state been would have many tendere as a acts waiver of constitu prosecution barred from further tionally-guaranteed rights. Accordingly, offense dangerous of assault with a very courts have been that a concerned weapon.9 Since violation of the voluntary or nolo be both only specification trial rule was the er- intelligently entered.8 If the does ap- ror that urge intended to possess attributes, gen both then it is peal, it legal would be wasteful of re- erally regarded binding. valid require sources to undergo plea, expressly If nolo contendere condi preserving full for the mere sake of upon as it tioned limited ruling case, adopted by present the superior court.10 Judge regard (g) provides: Rives observed with 9. Alaska Crim.R. 45 brought If second reason: a defendant is not trial be- requisites, running trial, [OJf ‘voluntariness’ fore the combined the as of the time for Brady (see ‘intelligence’ periods, and v. United extended excluded the court States, 1970, 4, upon 742, 397 U.S. 747 n. 90 motion of the shall dismiss 1463, equivalence 747), charge prejudice. discharge S.Ct. 25 L.Ed.2d for the with Such guilty plea, plea, prosecution charged to a valid a nolo condi bars for the and offense right any appellate a for tioned on review of to other lesser included within offense suppress evidence, might charged. motion to now the offense (since Richardson, 1970, McMann v. Relating 10. See A.B.A. Standards to Criminal 759, 768-771, 1441, 397 90 25 U.S. S.Ct. Appeals, commentary 1.3, (Ap- on at 32 § 763) being the L.Ed.2d meet test of ‘volun proved 1970). 444(d) Draft Rule the of tary,’ conditioning but the the of on (Work- Rules of Uniform Criminal Procedure right appellate review demonstrates ing Draft, May, 85) ; provides at 1974 that ‘intelligently’ that it was not so entered as guilty or nolo contendere deprivation nonjurisdictional to waive of the upon any nonjurisdic- bars an based sought reviewed; and more defect especially so, to be proceedings, except in tional defect the that pleading, where, at the time of denying (1) pretrial an order motion practice the court the review suppress evidence, (2) any pretrial or mo- honor such condition allowed the trial tion, which, granted, dispositive if would be court. E.2d at 28-29. 474 case, may be reviewed from on The ex Fifth Circuit has since this case ensuing judgment an of conviction. disapproval pressed practice ac its proposed appellate re- The rule would allow cepting pleas guilty if nolo contendere view of a trial issue like involved coupled agreements that with could express in the case at bar an even without brought. Sepe, be United F.2d States v. 474 right granted by appeal being the court 784, rehearing, aff’d on 486 F.2d 1045 accepting plea. or nolo The com- 1973). mentary accompanying proposed rule notes the defendant wishes to surrender “[i]f right 742, Brady States, 8. See v. United 397 U.S. appeal] gain order to [of some 1463, (1970) ; 90 S.Ct. 25 L.Ed.2d 747 plea agreement process, concessions 11; State, Alaska Crim.R. Lanier v. Cf. 443(a) permitted he is so Rule to do under ; (Alaska 1971) 981, P.2d Hammonds (4), supra.” (Working May, Draft 1968). 39, (Alaska State, 87.) v. 442 P.2d at

J257 circumstances, following concerning light mailing two facts In of these merits compelled decide the this second re- we feel port issue hearing were at the on Cooksey’s on the elicited Cook- claim sey’s Langdon motion to dismiss.12 The the case at bar.11 psy- apparently copies Clinic mailed trial is now turn We report attorney, chiatric district 5, Cooksey arrested on October was sue. public defender, superior at and the 27. 1972, on October was indicted part July, same In the first time. agreed that Cooksey and state are Both attorney, having district received Rule period under Criminal the four-month copy 29, the report May on noted that On of October began running 5. yet the court had not scheduled action 21, a waiver filed November Cooksey’s regard case February speedy until competency hearing. The district psychi 20, 1973, that he could secure so in- contacted the court to Febru prior to trial. On atric evaluation case, quire about the and the court indicat- filed a waiver ary 20, Cooksey again once yet ed had copy received 45 un right under speedy trial of his thorough the psychiatric report. A search could psychiatric evaluation atil second conducted, was completed case “recalendared and the the court had search failed to disclose that proce pursuant to normal Langdon’s report. ever received Dr. Superior Court.” dures followed subsequently an additional clinic mailed which was received report was com- second This hearing July competency court on and a May Langdon pleted by Dr. held on was found district at- copies were received trial, competent to be stand and on Au- torney public defender and the only sought appealed legislation adopted specific issue—the issue have Some states n —had been fully litigated appeals years approving from in recent limiting again during not he pleas could raised or nolo contendere Chavez, g., See, People the course trial. e. circumstances. passing (1972) Cal.Rptr. note in in its Cal.App.3d state We agreed allowing (m), 1538.5, (Calif.Pen.Code brief to this court submitted Subd. § Cooksey’s illegal in the case at bar plea nolo contendere seizure search and claim review of People Williams, ; guilty plea) should affect his raise after a appeal. (N.Y. (1972) A.D.2d 334 N.Y.S.2d McKinney’s 813c, Crim.Proc., Consol. § Code taking at of evidence this legality allowing 442) Laws, of of review c. very hearing on trial the motion was plea. despite search Cooksey presented informal. Counsel for evi- proper mailing support urged as argument dence to the of the of the 11. An often psychiatric report superior to the the of court no should that there be contention “stipulation.” Langdon in the form of a the Clinic is that from However, opposing decision, counsel seemed somewhat plea represents after accused’s an alleged proper stipulate him, against disinclined to to the case of state’s assessment the mailing, point questioned perhaps and at agony the court one of and the trial save himself stipulation. imposed. might penalty the facts of the court minimize the particulars 790, the Carolina, itself set forth the of search U.S. 397 See Parker v. North superior missing psychiatric (1970); for the court 25 L.Ed.2d 785 90 S.Ct. report. Richardson, 90 U.S. 397 McMann purposes only, Brady ; (1970) we are For of this 763 25 L.Ed.2d S.Ct. proper mailing going States, to treat the fact of 90 S.Ct. U.S. 397 v. United superior Lang- validity report (1970). court the the the 747 Whatever 25 L.Ed.2d thorough general might don and the fact of a argument Clinic in the have report by dearly the su- case, fruitless perior search for the to the case relevance has no it Cooksey, imposed Nei- court both as established facts. on The sentence at bar. directly Cooksey objected expressly plea, the state nor subsequent ther to his nolo presented the the evidence at the either Crim conditioned presented appeal. pre the at time it was or on the he had raised 45 issue inal Rule Furthermore, hearing. the 1258 Septem- proper date of

gust receipt 8 the court set assure and filing of the report it, period second, as deter- ber 4. The crucial far mailed to and the district adequate precau- the four-month failed take mination period copy report is between tions rule concerned is once received a May July prompt 29 and 17.13 to assure calendaring of the case. days Cooksey contends that but 7-10 all Cooksey’s argument initial is that May July period of the must be facts mailing establish the compu- included in the Rule 45 four-month psychiatric report second Langdon tation, that if this is state has and done the receipt report by Clinic actual Cooksey to trial clearly bring failed to the district attorney public defender required Cooksey four within months. May presumption supe- 29 create a that the February argues that his waiver rior court likewise received a May pre- on or about Such only up to should be construed to extend sumption mean, argues Cooksey, when, receipt such time after of the sec- period the four-month time would re- examination, ond the case running days commence within 7 pursu- would have come before the court May 29. ant to procedures normal setting a new date for trial. Evidence proper as to the mail Cooksey ing concedes that even without of a letter presumption does create a period February May 20 to waiver the letter was received period 29 would an However, excluded when com- addressee.15 presumption puting period. bar, the crucial four-month created is rebuttable.16 In the case at provides superior Criminal Rule 45(d)(1) court also had before it evi period delay resulting from examina- dence of an exhaustive search undertaken hearings superior tions and on the defendant’s com- in the re court for petency computing port are to be excluded when failure re search to maintains, the time for trial.14 veal indication that had however, May July that most 29 to ever been received This evi court. delay is attributable to the state rather presump dence served to rebut the initial request psychiat- than to his the second created the evidence con first, ric evaluation for two cerning mailing reasons: report. An is May court failed on or about 29 sue of presented fact thus itself for resolu Cooksey agree psychiatrie report 13.Both the state before the case could be period according 5 to October November is to be recalendared normal computation. calendaring. included within the four-month period days. This of 47 the state Both generally Clouatre, 14. See State v. P. agree period likewise (Alaska 1973). 2d 1189 period November excluded Co., 15. See Morse v. Pacific Gas & Elec. provisions 45(d) (1) under the both of Crim.R. Cal.App.2d 854, (Cal.App.1957). 314 P.2d 192 by Cooksey. and the waivers filed There agreement periods further that Liebold, of 16. In Rollins v. 512 P.2d 943- September August August (Alaska 1973), to17 28 and 30 to 944 we discussed the effect periods 4 given presumption jury are both that should be included that should be a in a computation. adopted within the gives pre trial This trial. We the rule that once a days sumption party opposing total of be 95 to counted toward is established the has period. proving the four-month the burden of that the nonexistence Cooksey argues presumed probable that there be should added of the fact is more than its May days adoption this all total to 10 of the existence. The rule merits in cases period. by jury This add at tried the court without as well as days 95-day period jury. least 39 additional event, to the those tried In push presumption the total well dispelled above four months once established be can (120 day days). period by contrary evidence; is deleted the trier fact must by Cooksey theory simply on the is the time this resolve the issue with the rule as elapse following receipt guide. that would of the prevented judge The trial him from reaching the trier of fact. report stage never been trial process. that the had the criminal concluded Thus, do not present- court. We the innocent defendant is received clearly erroneous.17 ed with finding unhappy hold this two alternatives: ei- be trial, ther not to demand hoping the state Cooksey argues the alternative trial, prosecute, will not demand that, presumption of re even if there no hoping to vindicate in spite himself compu ceipt report, the four-month his being fear of guilty. found days of begin tation must within 7 to Furthermore, system under our dis May it is that the 29 since uncontested justice, prosecution criminal it is the perused a attorney received and trict which initiates a case and which has the Cooksey as report on that date. of that power going In the forward with it. serts that it well established power, duty exercise it is the the court prosecution must share with public prosecutor the con- observe that a case responsibility assuring (footnote stitution. 486 P.2d particular Given the timely calendared. omitted) bar, can we the case at circumstances of general principle We do not find the agree. enunciated in to be determina Rutherford upon this court’s Cooksey places reliance question tive raised State, P.2d 682 Glasgow decisions Cooksey in this de appeal’. Here we must State, and Rutherford (Alaska 1970), period delay termine whether the occa 1971), arguing (Alaska P.2d 946 compe Cooksey’s request sioned for a responsibility attorney shared the district tency report and computed could be hearing was that the case to see with the court days May ending as within to 10 his re- following promptly recalendared attorney received inasmuch as the district both report. In ceipt psychiatric on that date. Cook- held that Rutherford, we Glasgow and sey requested delays had in his trial twice was not speedy trial defendant’s psychiatric exam date so he secure a could com- upon his demand conditioned ination, and the court accommodated pliance by the state request both Cook- each time. On provision. stated We Rutherford-. attorney re sey’s counsel and the district report on expect copies ceived it is too much feel [W]e re Cooksey, superior court did not must de- but the a defendant human nature public copy.18 when ceive Because was speedy trial to receive one mand a delay requested the defender who the outcome assurance as he has no date, responsibility verdict we think uncertainty as to the trial. dis him as with the innocent as rested much with to the bring indecision can psychiatric re should to see that the trict guilty. While as the well innocent, port brought to the attention of such a vindicate the about the case could so apprehensive court may nevertheless Consequently, has Criminal outcome, innocence recalendared.19 for even 52(a). received its the court had court whether 17. See Alaska Civ.R. copy. Not so much as forewarn court, Anchorage superior task 18. In the merely had in but come recalendaring the court. handled cases is obligations had to his client that his see been carried out so that normal procedures theAt safeguard issue, be had to could stated: trial court guarantee rights however, de- feeling, also the constitutional My in this case is public However, And responsibility de- was not done. great fendant. this on the lies public agency only rath- agency, had re- I defender he find that because not fender participation psychiatric in this than take an active quested examination er the second that the court had the matter has assumed responsibility received his he had but because psychiatric assumption inquire examination, that because of the period Accordingly, 45(d)(1) Rule excludes entire we affirm the delay February finding from 20 to 17 from de- July court’s that was not computation, prived right speedy four-month inasmuch as to a under delay period the entire de resulted from terms Criminal Rule 45. request psychiatric fendant’s evalua Affirmed. hearing.

tion To hold otherwise speedy would tend to transform ERWIN, (concurring). into a be ma hyper-technical rule device Justice nipulated by escape in order to an accused agree I that honor the condi- failure to justice.20 the administration appellant a limited allowed right speedy trial issue on the Further, speedy that the we note contendere un- would render signed by Cooksey trial waiver on Febru intelligent involuntary require provided right ary 20 to a join it be I Accordingly, vacated. in nn psychiatric was waived until the eval is- grant court’s decision to review this completed and case re- uation could be specifically sue and concur the court’s “pursuant calendared for trial to normal However, resolution of de- it. I reach this calendaring procedures followed the Su only cision I because view the perior pro Court.” Normal jurisdictional an allegation to be of a court, in Anchorage cedure Hence, defect. this case falls within earlier, we mentioned is for the clerk of general rule that or nolo relatively that court to recalendar case juris- contendere does bar not promptly after dictional issue.1 report. not district does nor mally recalendaring' responsibility. bear brought is When defendant not to trial Thus, plain meaning language of within 120-dayperiod in defined Crimi Cooksey’swaiver leads us to the same 45,2 con nal is fur the state barred from clusion since the not re prosecution ther and the effective July 13, peri ceived the court until ly deprived jurisdiction over the of May July od pe 29 to is an excluded fense set forth in the information or riod. A 120-day pe indictment.3 claim that the this court had 45(d). February received re- Crim.R. 20 waiver port day May, on or about view, superfluous 24th was, 1973. at bar case our responsibility belongs I feel period since the 29 to is excluded only public agency with the language 45(d) (1). defender of Crim.R. belongs attorney’s with the passing district office We note a waiver of specifically too. for a defined period open-ended highly preferable to the Clouatre, 20. In language State v. 516 P.2d February utilized in the 20 waiver. (Alaska 1973), specific we stated : A waiver until a date the future kept day (which It must in mind that the 120 waiver could be extended further period up only waivers) many set Rule 45 is interpre- basic would obviate considerably longer period datum. A could tive difficulties have arisen the case elapse before trial unfair- without resultant at bar. injustice ness to the accused. Rule period therein, with the excluded set forth Mizell, 1. See United States 488 F.2d merely delay. 1973) ; Wright, sets the limits of We outer 1 C. Federal fairly believe that the rule work will if it Practice Procedure § 379-80 applied according objective (1969). its ter- minology. majority opinion supra. l See note 1, supra, 21. As we discussed in note a waiver a defendant of his Clouatre, can- See State P.2d period (Alaska shorten the 1973). of excluded time under akin to is thus been violated riod has information indictment or

claim that W. Petition of Michael MOODY. offense,4 underly an fails to state No. 2035. unconstitutional,5 or that ing statute Supreme Court Alaska. statute of prosecution is barred July 22, 1974. jurisdictional 6—all claims limitations appealable traditionally held to be defects or contendere. pleas

after condi Hence, nolo contendere plea alleged appeal right on the tioned under proper even violation 120-day rule may be pleas con prevailing view ju right only upon ditioned issues.7 risdictional minority view recognize I that there is upon limited that a conditioned issues non-jurisdictional certain because would be condoned should judicial ad- contrary to sound notions of to un- require a defendant ministration lengthy trial dergo costly possibly quickly when all but one issue could plea. How- disposed a conditioned espousing this analysis ever, of the cases part, that, most view reveals non-jurisdictional grounds which precise subjects pleas proper are of conditioned set court rule or usually are forth or In the absence of such rule statute.8 statute,9 am to burden I reluctant responsibility

judge additional determining guidance whether without non-jurisdictional particular pro- in a possibly ren- posed conditioned involuntary. plea unintelligent der the adopt majority I would therefore pleas accepting view10 that upon a limited nolo contendere conditioned non-jurisdictional grounds prohibited. majority opinion supra States, See, g., 8. See note 4. e. v. United Kolaski Mizell, (5th 1966). v. and the cases cited United States F.2d Cir. 1973). F.2d 99-100 Cir. See, g., Ury, 5. e. 106 F.2d United States v. (2d 1939). Cir. 11(e) controlling plea 9. Alaska R.Crim.P. agreements bargaining provide fails to Harris, See, g., e. 796, F. United States accepting pleas. standards conditional Supp. (W.D.Mo.1955). majority opinion supra, 2 of See note DeCosta, 7. See United 435 F.2d States (1st 1970) (court supra. reached note See question following guilty plea).

Case Details

Case Name: Cooksey v. State

Court Name: Alaska Supreme Court

Date Published: Jul 19, 1974

Citation: 524 P.2d 1251

Docket Number: 2076

Court Abbreviation: Alaska