*1
STATE Attorney, Maricopa County Petitioner,
v. Arizona, State COURT
SUPERIOR OF MARI IN AND FOR COUNTY COPA, Rozar, Mar the Honorable Morris Martinez, Epimenio garito Almeda, Gallegos Lopez, parties Chavira, real Jesus interest, Respondents.
No. 11631. Arizona, Court of In Banc.
Dec. 1974.
Rehearing Jan. Denied
336 Martinez, voluntary manslaugh-
Gallegos ter, years one to ten in the Arizona State Prison. Chavira, voluntary manslaughter,
Jesus years ten one to State Prison. Almeda,
Margarito’ murder second de- in the Ar- gree, twenty years life five izona State Prison. Lopez,
Epimenio degree, murder second years to fifteen life in the Arizona State Prison.
Lopez, given Almeda and Martinez have appeal. notice necessary facts a for determination this matter are as follows. Defendants February on were arrested 1974 and 8 aft- preliminary proceedings an er information arraignment in the was filed and held Su- perior on An February 1974. 20 om- hearing nibus March and was set for 18 trial for 28 Thereafter March 1974. transpired: following Maricopa County Berger, E. Moise March 1974 18 there was a motion for Phoenix, Abodeely, by Joseph E. Atty., change and on 28 March hear- petitioner. for ing on was set said motion. Welliver, McVay by Douglas April change 3 hearing Smith & 1974 on J. Phoenix, respondent Almeda: McVay, for held. hearing At such it was parties approved that all determined Ross, Ross L. Phoe- Mason & Frank Judge Judge Case and and the mat- Roush nix, -respondent Lopez. for Judge ter was transferred to Case fur- Phoenix, Southern, respon- Reid E. proceedings. ther dent Chavira. April 1974 Judge 18 ordered the Case Judge matter transferred Roush for
CAMERON, Vice Chief reassignment. Justice. petition special action filed This April County Attorney 19 1974 the filed Maricopa County Coun- Attorney of hearing a motion reset ask- the omnibus ty ásking we the decision review ing hearing that the be set omnibus within dismissing criminal ac- the trial court five trial date soon after call- for failure to against the defendants tions the court’s ing to the time attention limits. the time limits comply within April reset, hearing 22 1974 on motion to 1973. rules of Criminal Procedure granted. order The matter was set for jurisdiction hearing, After we took 1974; jury May trial before 13 omni- on petition special and ordered action hearing May 7 bus matter, and proceed in the April 1974 the defendant Almeda opinion was to follow. indicated that for release based on a written motion filed Thereafter, plea bargains, aas result of within the him to bring the failure following pleas the defendants entered rules. sixty days contained following sentences: and received n April hearing pered by meager to re- motion record on which to base the release was our lease heard and denied. decision. n May hearing the omnibus com- EXCLUDED TIME *3 and the entered an order that
menced court court had the records would show that the Rule 8.4 of the Rules of Criminal conference with the counsel brief periods Procedure 1973 excludes certain due the number of matters no evidence to computation from of time for at that time. At this would determined purposes. 8.4(e) Rule reads: Almeda re- time for defendant counsel Delays resulting joinder “e. from for quested competency determination doc- trial with another defendant as whom to appointed. tors were At time also the time limits have not run there when defendant was made motion Chavira good cause denying .for severance. In to sever. record before this court does cases, all other severance should be ruling not indicate on this motion. Also granted preserve applicable time May County Attorney on 7 moved limits.” prevent in limine to certain matters from this, Assuming purpose for the motion presented recipro- lack being because of good that there was denying cause for cal discovery. severance, each of the four defendants May 24 hearing pursuant 1974 a to Rule then chargeable with excluded time at- 11 of the Rules of Criminal Procedure tributal of the other defendants. 1973, 17 was A.R.S. held and the court specifically 8.4(a) provides Rule delays for that the found defendant was Almeda able by occasioned hearing examination and proceed- to understand the nature competency. Therefore, to determine ings against him and assist counsel. An delay in this by case occasioned the deter- hearing as to all defendants was- omnibus competency mination of of the defendant set at this 3 time for 1974 1:30. June Almeda was excluded as as time far Testimony was 3 taken on and the (cid:127) June three other defendants were concerned. court recessed to 4 1974when further June That May motion was on made 7 and the testimony was taken. matter May. determined on days 24 17 should therefore excluded from the total 20 1974 attorney informed June time of all the defendants. defendants, Gallegos, Almeda and deputy prosecutor that the court could We next come to the occa not continue being as was he by sioned the search judge. for another assigned Court and he 8.4, Juvenile Rules of Criminal Procedure would be unable hear further the volun- 1973. 8.4(a) computa excludes from hearing. tariness “[djelays tion of time occasioned or on behalf of the defendant.” We believe that 1974 the was matter transferred June when a change defendant moves for Judge Rozar. provided judge Rule 10 of the Rules ' July 1974 motion dismiss was of Criminal it is Procedure for and made on behalf of all the defendants as on behalf of the defendant and the reason well as a motion County Attorney able time takes find a new proceedings. schedule time. which should be from the excluded computation time. . July 1974 the matter was dismissed . petition special
followed
change
action
Motion for
was made
to this
Although
court.
April
counsel for
on 18 March
de-
1974. On 3
1974 a
appeared
fendants
at the oral argument
hearing
Judge
held
was
Case and
petition
special action,
response
Judge
approved by
Roush were
the four
petition
filed to the
either
before
defendants and the case was ordered trans-
hearing.
after the
We are
Judge
ham-
ferred
fu-
therefore
Case
further and
TRIAL RULES
THE SPEEDY
of WERE
It is the contention
proceedings.
ture
period
VIOLATED?
from 18
the State
April,
Judge Case ac-
to 18
when
March
delays
days plus
Admitting
(17
these
Roush,
Judge
tually assigned the matter to
days,
apparent
it is
days),
or 48
defendant on
is the excluded time.
brought
were
within
defendants
if this time is
hand
the other
contends
periods prescribed by
the Rules of
excluded, it
be between 18
to be
Procedure 1973.
defendants
April
Because
file
March and
custody
have been tried
and should
were
the de-
before us is
and because
limited
arraign-
the date of
within 60
from
any memoranda
have not
fendants
filed
*4
court,
20 February
the
on
before
ment
record,
clarify the
we
with us which would
20
the
time
In
instant case the
from
of the
that
the contention
assume
day
1974 to
the motion to
February
the
Attorney
County
is
in this case and
correct
1974,
granted,
July
was 140
dismiss
days from
therefore
full
days. When
amount of excluded
April
excluded.
March to 18
should be
deducted,
days,
this leaves 92
of 48
days required
of
well in excess
the 60
contended
of Criminal
8.2 of
Rules
Proce-
Rule
further
time should
excluded because
be
persons
custody.
dure 1973for
in
congestion
extraordinary
there was
due to
prosecutor,
bring the
It is noted that the
while no-
which
mat-
circumstances
would
period
tifying the trial court of the time
8.4(c)
reads:
ter within Rule
required by
8.1(c)
the Rules
of
by congestion
Delays necessitated
“c.
Procedure
failed to make
calendar,
when
but
the trial
any motion for continuance.
to extraordi-
congestion
attributable
reads
Rule 8.5
as follows:
circumstances,
case
nary
in which
notify
“Rule 8.5 Continuances
presiding judge
promptly
shall
Supreme
Arizona
of the
Chief
Form
Justice
“a.
Motion. A continuance
Court of the circumstances.”
may
granted only upon
be
written mo-
tion, stating
specificity
the reasons
contemplates that
8.4(c)
it,
justifying
certificate
apprised of the
presiding judge shall be
sit
signer
good
that it is
in
A
made
faith.
presiding judge
uation
order for the
granted upon
may
second continuance
be
notify
delays.
Chief
Justice
Any
a second motion and certificate.
congestion
delays
order for
occasioned
may
continuance in this case
additional
excludable,
report
be so
fact must
be
granted only by
presiding judge,
be
presiding
instant
ed.
In the
case had
A continu-
“b. Grounds
Motion.
situation,
apprised
judge been
granted only upon
shall
ance
be
show-
immedi
assume that he would have taken
extraordinary
ing that
circumstances ex-
steps to correct
addi
ate
the situation
indispensable
ist
of this
notifying
tion
Chief
Justice
justice.
may
A continuance
interests
prop
in order that
take the
we could
granted only for so
as is
long
neces-
if
er action
The trial
needed.
justice, and in
sary to the interests of
apprised
presiding
should have
longer
days.
case for
than 30
problem
extraordinary
of this
and of the
circumstances,
present.
Copies
Upon
if any,
granting a
Because
“c.
Order.
done,
party
us
either
continuance
this was not
record before
motion
extraordinary
entry
any finding
spe-
cir
shall
a minute
void of
the court
direct
cifically
enumerating
hold
cumstances
which we could
reasons. The
copy
being
This
shall send a
to each
excluded.
clerk
parties,
presiding judge,
and to
we cannot
time based
exclude
extraordinary
of the Arizona
the Chief
Su-
circumstances.
aside;
An
preme
denying
order
mo-
Court.
therefore remanded to
summarily.”
Appeals
the Court
tion
be entered
direct the Dis
trict
judgment,
Court to set
aside
va
duty to ask
had a
sentence,
cate
dismiss
indict
necessary
obtain the
continuances
for and
States,
ment.” Strunk v.
United
U.
became
case when the circumstances
434, 440,
2260, 2264,
S.
93 S.Ct.
37 L.
so,
do
apparent
necessary
that it was
(1973).
Ed.2d
presenting
the facts which
to the court
would warrant
a continuance
Were we concerned herein with
could,
making
record from which we
federal
constitutional denial of
support
necessary,
continu
find
said
under' the decisions of the United States
say,
the facts be
ance. We cannot
from
interpreting
the United
us,
its dis
fore
that the trial court abused
Constitution,
States
we would have no oth
dismissing
criminal action in
cretion
recourse,
er
once there was
denial
this case.
determination,
but
dismiss
extraordinary
dangers
One of the
has, however,
the action.
pro
practice
writ
is that
the court can be
vided
requirements
stricter
*5
here,
tempted,
grant
as
oral
relief after
provided
than those
by the United States
argument
incomplete
with an
record and Supreme
interpreting the United
insufficient review of
law and the
See,
States Constitution.
Barker v. Win
appears
facts. Such
to be the case herein
go, supra.
however,
follow,
It does not
and after further
of the
consideration
ad-
person
to be
relief
afforded a
mittedly incomplete record before us and the violation
admittedly
of the
more strict
applicable
special
law with
attention
speedy
requirements
Arizona
trial
is the
1973,
the Rules
Criminal Procedure
provided
same
as that
the United'States
come to the conclusion that we erred in or-
requirements
speedy
constitutional
trial.
dering the
time
matter to trial
Until
speedy
such time as the
trial viola
argument.
We find that after
oral
ex-
tion in Arizona reaches federal constitu
mentioned,
periods already
cluding the
proportions,
may be
tional
our remedies
rights
speedy
defendants’
trials under
imposed
and
are different
than those
our Rules of Criminal Procedure 1973
Supreme
States
United
Court for vio
violated. The
not in
were
trial
speedy
lation of
trial.
holding.
error in so
right
speedy
generally
considered
right
to be
defendant’s
In-
DISPOSITION
deed,
Constitution,
the United States
Holding
do
as we
that the trial court did
VI,
Amendment
and the Constitution of
action,
in dismissing
not err
it does
not
A.R.S.,
Arizona,
2, 24,
Art.
State
§
follow
the matter must be dismissed
right
prac-
states
As
terms.
prejudice.
appears
There
be some
matter, however,
tical
far
guilty
as
as a
“speedy
in the term
trial” used
confusion
concerned,
defendant is
is a right
it
that he
in connection with the Rules of Criminal
when,
urges except
seldom
in those cases
Procedure
and
the constitutional re
run,
perceives
after the
has
he
quirements
trial as set forth
right
his
trial has been
violated.
in the decisions of the United States Su A guilty
usually
defendant is
content
al-
preme Court,
Wingo,
Barker v.
407 U.S.
low the
date to be continued until
(1972).
S.Ct.
prosecution prejudice shall cutor and judgments entered thereon prosecution commencement of another may be set aside speedily and the matters arising out of trans- the same events or and expeditiously tried on the merits. The actions, unless, when the defendants shall tried within ground based on a other than a violation the issuance of the herein. The mandate its order finds defendants need not be released on their justice require that the interests of recognizance own pending trial. prejudice.” the dismissal be without The Comment to Rule 16.7(d) also states: LOCKWOOD, STRUCKMEYER and general “This section establishes the JJ., concur. principle accused who successful- ly opposes a criminal HAYS, Chief (specially concur- put expense, not be to the additional ring) : anxiety of reprosecution result, I concur with the *7 reached justice ‘the of require.’ unless interests majority opinion, but I cannot subscribe to Cf. the 1956 Rules of placed unreasonable burden Procedure, Rule 238.” prosecution. majority opinion says 16.7(d) appears Rule to be in conflict that though county even attorney is 8, by opinion with Rule this we hold that ready proceed to the trial .with and notifies prosection applies Rule and the be problem Court of in- the time deadline prejudice .dismissed without even viola- volved, he must also file a written motion court, tions of Rule 8 when in the trial its appears to it log continue if that a case discretion, directs. jam in possibly the court will necessitate a I can logic continuance. find neither nor perfect, The route we follow here is not reason attorney a require county file provide but it does against some sanction for a continuance that he himself doesn’t respon- prime one officer who has the want or Let need. make his own sibility pro- in seeing speedy trial justify record case, the continuance of a met, visions prosecutor. are and that especially if it occasioned the state of responsibility He has under our rules of his own calendar. calling this to attention of judge, making of motions for continuances HOLOHAN, (dissenting). indicated, seeing when are these and of that the defendant is in brought to swift and cer- decision the Court this case to n Therefore, justice. society tain release admitted requiring that a four killers presents grave when these vio- of occur rules are matters concern. This lated, allowing felony particularly trial judge, but in so when the reason for such refiling charge whether to allow any constitutional
action is because not (b) were the after dismissal. If subsection been violated right defendants has be only there some might of a violation consideration has been but because there justification espe- ruling for the Court’s the Court’s rules. equivocal cially in view the somewhat of The confusion in this matter further However, rules. comments compounded the Court ini- by the fact that quick gives (d): Rule 16.7 gloss tially court not ordered that the trial “Dismissal shall proceed to miss the but trial. action of an- comply with to commencement undertook with prosecution arising other out of the same order, defendants entered and the Court’s transactions, unless, when the they pled events or plea agreements, by which into ground dismissal is based on other guilty degrees homicide and lesser than the court in a violation confinement. have been sentenced to aside; jus- order that the interests the infor- finds These convictions set require the dismissal be without dismissed; tice mation court instruct- prejudice.” dismissal is ed to determine whether leave refile. with or without foregoing it reading rule From appears prej- with dismissal shall be emphasized that At the outset it must be require justice unless the interests udice violation case does not involve prejudice, the dismissal be without but right the defendants constitutional apply such considerations do to viola- agreement I with trial. am which is tion of Rule 8 so- majority’s between the distinction provisions of rules. A violation of “speedy requirements trial” called differently than other is treated (1973) Rules of Criminal Procedure grounds my view was requirements dismissal. constitutional deprivation of intended that dismissals violation of Clearly, trial. there is no preju- time limit could speedy trial Rule 8 right the defendants’ in- The real dice. the constitutional sense. issue interpretation of
volved foregoing position supported by the Court’s rules. history of Rule 8.6. The recommenda- drafting tions committee on the disagreement I am in total provide: interpretation Ap- criminal rules was that the 8.6(b). Court’s parently majority the view that takes “a. DEFENDANT IN CUSTODY. IF requires the rule must be dis- a case A DEFENDANT IN CUSTODY missed for a violation of the time limits IS NOT TO TRIAL BROUGHT *8 within which tried. I find cases must be WITHIN THE TIME LIMITS nothing requires in the rule a 8.2(b), BY PRESCRIBED RULE (b) As I read the conclusion. subsection HE BE SHALL RELEASED ON is given court discretion whether HIS OWN RECOGNIZANCE prosecution. dismiss the DELAY, AND THE WITHOUT TIME LIMIT BY PRESCRIBED Interestingly enough disagree- amI 8.2(c) RULE APPLY. SHALL meaning ment with the the Court as to IF THE effect of “b. OTHER VIOLATIONS. (b). under subsection AFTER COURT DETERMINES majority The takes that the view the court prosecution CONSIDERING THE EXCLU- dismiss the violation 8.4, THAT A RULE requirements, SIONS OF but there TIME LIMIT granted discretion to re- ESTABLISHED whether leave 8.2(a), 8.2(c), 8.2(d), BY Apparently file or RULES not. the rationale 8.3(b)(3) 8.3(a), 8.3(b)(2), by permis- the OR that discretion indicated VIOLATED, IT “may” HAS BEEN applies sive to the determination of illegal SHALL ON OF deter MOTION THE searches. See American Bar Standards, DEFENDANT, MAY OR ON Function, Urban Police INITIATIVE, pages ITS OWN DIS- 156-158.
MISS THE PROSECUTION imposed The sanction to be in this case WITH PREJUDICE.” applicable is not prosecutor, to the but justices three conjured have language up propo- drafting used commit- sition that leaves should tee no doubt that a dismissal with have moved for a prejudice posi- continuance. This novel was to entered for violations requires tion of the time limits established move for a Fortunately protect continuance judicial system he doesn’t want to so- record from ciety delays. accept agree caused I Court declined com- with the Chief judges mittee’s version. As will be noted the make their own record for judge (b) Court amended subsection to make caused the. delays. Upon prosecution whom permissive dismissal of should the onus the sanction Certainly fall? using “may.” As not the term I would read last rule, who found case its whether court below dismisses present posture. it is a Should fall on the the case or not matter within the sev- judges eral who were involved in permissive court’s sound various discretion. stages of ran “may” as it leaves the tortuous trial court discretion to path through determine the criminal whether the be dis- divisions of the case should Superior Perhaps. Court? missed even if the limits have Should the been responsibility However, be carried appears violated. me Court for prescribing a set of prose- time limits which in does fact dismiss the test of proving time are themselves to- cution it be with because of must tally unreasonable provisions ? 16.7(d). unworkable It is a matter of knowledge common The comments under Rule 8.6 offer no populous two most counties in the state meaning assistance as the intended are suffering a total breakdown in the dis- confusing rule. The comments are as position period of litigation. In a short as the rule. judges time all the of these two counties analysis provisions In final of may trying nothing but criminal cases. 8.6(b) present problem of construc- argue It is fallacious rea- tion of what this Court meant rule son public is that officials have say. purpose What is the and intent of failed to devote sufficient resources policy? my rule—the view the disposition of criminal cas- designed provide the trial court initially es. ar- which has with a for gross sanction violation of bitrarily set time limits which its view speedy trial limits. represent speedy justice, and at the same concept pretrial procedure dismissal of criminal increased be- prosecutions for fore a case violations can ever be tried. is no There magic time limits is questionable agreed best. formula nor dic- fact which *9 responsible delays The ones for time are tates the time limits which constitute punished speedy justice. adoption the case. The Court public by turning rules, made to very suffer some of little the criminal with em- society. pirical data, admitted criminals into It is back decided recommenda- height folly contend tions committee for the time select provided Experience limits 8.2. missing a criminal this has shown such time limits a dis- punishment responsi- somehow a on those justice system. aster to the causing ble for the dismissal. Serious questioned background With such efficacy scholars this Court now have real as device to directs case must be dismissed. exclusionary even is set the court previous decision judge is left decide aside, with- be with or will the dismissal
whether without the dismissal prejudice.
out system, and public, time, expend the must
even the defendants anew money to start
energy and trip through the wonderland
for another County; Maricopa divisions criminal ad- prejudice four
if the dismissal society into will be released
mitted killers al- of these Neither punishment.
without acceptable or endurable.
ternatives rules on the criminal placed
construction inescapably ab- majority to an leads
surd result. princi- great no
There are constitutional today. un- ruling
ples in the involved principle involved in this case
derlying arbitrary time limits
that the Court’s consequences upheld matter what principle can be
may'be. No doubt “speedy justice” and
clothed terms or other
“proper judicial administration” slogans. Brushing aside
appropriate judicial rhetoric decision
birdlime of underlying rationale Court of the cause of is a subversion public con-
justice weaken can judicial state. system' of this
fidence in the
STATE
v.
Gaspar PEREDA, Appellant. V.
No. 2844. Arizona,
In Banc.
Dec.