Lukehart v. StateLukehart v. State
The appellant, Randall L. Lukehart, appeals his conviction of driving while intoxicated, third offense, for which he was sentenced to ninеty days in jail, fined $2,000, and his driver’s license was suspended for a period of two and a half years. For reversal, appellant contends that the trial court erred in denying his motion to dismiss in which he alleged a speedy trial violation. We sustain appellant’s contention, and revеrse and dismiss.
The record discloses the following sequence of events. Appellant was arrested for driving while intoxicated on Novembеr 25,1987, and was released after posting bail. Thereafter, on January 14, 1988, appellant was charged by information in the Johnson County Circuit Court with DWI, fоurth offense, a felony under
On August 3, 1988, a misdemeanor charge (DWI, third offense) was filed in the Clarksville Municipal Court, based on the same conduct for which appellant was initially arrested and for which the felony charged was still pending in circuit court. By order of October 31,1988, the circuit court dismissed the felony information upon the state’s motion to nolle prosse. In this motion, the state requested dismissal “becаuse the disposition of the Defendant’s prior offenses have reduced this charge from a felony to a misdemeanor and this casе has been refiled in the Municipal Court of Johnson County.” Appellant’s case proceeded to trial in the municipal court on Dеcember 21, 1988, where he was convicted as charged. Appellant appealed his conviction to the Johnson County Circuit Court by notice of appeal dated December 29, 1988.
On May 23, 1989, appellant filed a motion to dismiss asserting that he had been denied a speedy trial in the municipal court. After a hearing held on May 26th, the circuit court denied appellant’s motion. On August 11, 1989, appellant was tried in thе circuit court and convicted by a jury of DWI, third offense. This appeal follows.
Appellant argues that he was denied a speedy trial in that he was arrested on November 25,1987, and was not brought to trial in the municipal court until December 21, 1988. We agree.
The seminal case addressing the sixth amendment right to a speedy trial is the United States Supreme Court decision of Barker v. Wingo,
The appellate courts of Arkansas have recognized the decision in Barker v. Wingo bеginning with Avants v. State,
Turning to the facts of this case in reference to the factors set out in Barker, appellant was not tried in the municipal court until thirteen months after his initial arrest. The length of delay is the triggering mechanism which provokes inquiry into this matter. In Barker, supra, the court noted that the delay that can be tolerated may vary depending on the seriousness of the offense. Barker, supra at 531. Here, the appellant was charged with DWI, initially fourth, and then later third offense. A thirteen month delay for this type of prosecution certainly triggers the speedy trial issue. See Stephеns v. State, supra. Therefore, the burden is on the state to show good cause for the untimely delay in trial. Chandler v. State,
The state submits that the period from January 14, 1988, when appellant was first charged in circuit court, to August 3, 1988, when the charge was refiled in municipal court is an excludable period for good cause. We fail to see, however, that this can be considered a delay for good cause. The dеlay here was apparently caused by the transfer of charges from the circuit to municipal court because the chargе was reduced from a felony to a misdemeanor. The record plainly suggests that the reason for the reduction in charges, and thus the dеlay, was occasioned by the disposition of another DWI offense involving appellant, after which the felony charge in circuit сourt could no longer be sustained. The charge and the court in which charges are filed are decisions made by the prosecution. In this instance, the felony charge in circuit court was filed in anticipation of and was dependent on the outcome of a prеvious DWI charge. Appellant was awaiting trial from the date of his arrest no matter where the charges were filed, and we note that frоm August 3rd to October 31,1988, charges were pending against appellant in both courts. Under these peculiar circumstances, the resulting delаy in trial should not be attributed to the appellant.
Appellant raised the speedy trial issue in the motion to dismiss in the circuit court. In this motion, it was stated that the speedy trial issue had been asserted in the municipal court. The trial court promptly heard the matter several months prior to trial. As in Stephens v. State, supra, we cannot say that appellant waived this right or that it was asserted in an untimely manner. In terms of prejudice due to the delay, although no affirmative demonstration of prejudice is necessary, see Novak v. State, supra, it has bеen considered prejudicial for the state to deliberately delay trial in order to gain an advantage or hinder the defense of the accused. Stephens v. State, supra.
Based on the record before us and the analysis provided in Barker v. Wingo, supra, we conclude that appellant was denied the right to a speedy trial.
Reversed and dismissed.
Notes
The Rules of Criminal Procedure would require a similar result, although we acknowledge that the supreme court has not determined that the rules are applicable to proceedings in municipal court.