Larry James OSBORN v. STATE of Arkansas
CR 99-584
Supreme Court of Arkansas
Opinion delivered February 24, 2000
11 S.W.3d 528
ROBERT L. BROWN, Justice. Appellant Larry James Osborn argues as his sole point on appeal that he was denied a speedy trial under
At approximately 4:50 a.m. on the morning of May 18, 1996, Herschel Wright was loading his pickup truck in the parking lot of the Ramada Inn in Benton. His wife, Diane Wright, was in the motel room, and his grandson, Nathan, who was age seven, was with him. A car pulled into the parking lot, and the passenger, whom Wright later identified as Osborn, asked for directions. Wright got out of his pickup truck and walked over to the passenger side of the car, where Osborn asked specifically for directions to the interstate highway. Osborn then leaned over in his seat and raised up with a pistol pointed at Wright. Osborn demanded Wright‘s money, and Wright gave him his wallet. The driver of the car, who was identified later as Cory Jones, said: “Give him all your monеy or he‘ll blow you away.” Wright replied that Osborn had all his money. The car sped away. It was pursued by police officers and crashed in a single-vehicle accident. Osbоrn was arrested that same day and charged with aggravated robbery.
On March 24, 1998, Osborn moved for a dismissal of the charge against him based on a speedy-trial violation. The trial court denied the motion. On April 28, 1998, Osborn petitioned this court for a writ of prohibition, also based on speedy-trial grounds. On May 15, 1998, we denied the petition without prejudice to rаise the same issue on appeal.
Osborn was tried by a jury on June 4, 1998, and convicted and sentenced as previously stated. Following entry of the judgment, Osborn moved for a new triаl based on the fact that three jurors had been misled by the prosecutor‘s closing argument regarding Osborn‘s criminal record. The trial court heard testimony on this point. The court set aside the sentence and granted Osborn a new sentencing trial. The State appealed the grant of a new trial, and this court reversed and ordered that the original sentence be rein
The essence of Osborn‘s point on appeal is that he was tried 747 days after his arrest. This exceeded the twelve-month requirement by 382 days. Of those days, he concedes that 218 days were due to his requests for continuances and 64 days were caused by his objection to the trial date set for April 20, 1998. This leaves 100 days over the twelve-month limit. At issue in this appeal are 118 days that accrued between the dates of December 4, 1997, and April 1, 1998. If the full 118 days were properly excluded by the trial cоurt, there was no speedy-trial violation.
After Osborn was granted the continuances, his trial was set for October 17, 1997. He failed to appear for trial on that date and was later arrested in the state of Colorado and returned to Benton on December 4, 1997. Osborn now contends that his trial should have been set within 18 days after his return from Colorado to comply with speedy-trial requirements. He further contends that if the trial delay was due to congestion of the trial docket, no written order or docket notation was made on December 4, 1997, to show that the congestion was due to exceptional circumstances, as required by
We do not consider Hicks v. State, supra, to be precedent for deciding the instant case. Osborn‘s trial was set for October 17, 1997, and he failed to apрear. The duration of a defendant‘s unavailability is clearly an excludable period for speedy-trial purposes. See
Osborn also takеs issue with the absence of a contemporaneous written order or docket entry at the time the “continuance” was granted on December 4, 1997, after he was rеturned from Colorado. We do not view the trial court‘s resetting of a trial date under these circumstances as a traditional continuance. It is clear from the record that Osborn failed to appear for trial on October 17, 1997. It is further clear from the record that Osborn‘s trial was rescheduled for the first available trial date, after his rеturn to Arkansas.
We have held that failure to make a docket entry or written order relating to excludable periods does not warrant an automatic reversal under
That is exactly what transpired in the case before us. The record shows that Osborn delayed this case by not showing up for trial on October 17, 1997. It further shows that the trial court reset the case for the next available trial date. Under these circumstances, where the record clearly reveals what occurred, strict compliance with Rule 28.3(i) is not required.
The record in this case has been reviewed for other error in compliance with
Affirmed.
GLAZE, J.,concurs.
Our criminal rules do not specifically addrеss this situation, and while my research fails to reveal a case where a defendant appellee has cross appealed when the State had appealed, there are numerous cases where the State as appellee has filed cross appeals. See e.g. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997); Moore v. State, 321 Ark. 249, 258-61, 903 S.W.2d 1544, 158-60 (1995); Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). While our Rules of Appellate Procedure-Criminal do not specifically mention cross appeal, as such, our Rules of Appellate Procedure-Civil clearly do (see
In sum, our procedural and appellate rules do not specifically provide that a defendant, who is denied a writ of prohibition on speedy-trial must raise the issue on cross appeal. Nonetheless, this сourt denied Osborn‘s petition without prejudice to raise the issue on appeal, and an appeal procedurally includes a cross appeal. Cf. Flemings v. Little, 324 Ark. 112, 918 S.W.2d 718 (1996). Tо allow Osborn to bring an appeal after his case was finally concluded in Osborn I merely encourages piecemeal appeals — a practice this court has repeatedly and steadfastly opposed.