Lead Opinion
[¶1] A jury convicted Appellant, Clint Raymond Webb, of two counts of aggravated assault and battery with a deadly weapon, one count of felony property destruction, and one count of attempted second degree murder. On appeal, Mr. Webb argues his convictions should be reversed because the State did not bring his case to trial in a speedy manner, two of his convictions violated the Fifth Amendment to the United States Constitution, and there were various errors that occurred during his trial. We affirm.
ISSUES
[¶2] Mr. Webb raises six issues in this appeal:
I. Was [Wyoming Rule of Criminal Procedure] 48 violated when [Mr. Webb] was prosecuted for the same charges after dismissal, when [he] had filed a demand for speedy trial?
II. Was [Mr. Webb] denied his constitutional right to a speedy trial?
III. Did the prosecutor commit misconduct in closing argument when he mischar-acterized the role of the defense expert witness, Dr. Loftus?
IV. Was trial counsel ineffective for failing to offer an accident instruction?
V. Did plain error occur[ ] when the trial court gave an inference of malice instruction?
VI. Should this Court reconsider its holding in Jones v. State,2016 WY 110 , [384 P.3d 260 ] (Wyo. 2016) as this Court did not analyze the legislative history of Wyo. Stat. Ann. §§ 6-2-502(a)(ii) and 6-2-104 and determine that the legislature expressly intended the result reached in Jowes?
FACTS
[¶3] On June 30, 2014, Julie Webb was driving her Nissan Murano in Casper, Wyoming. As she was stopped at the intersection of Walsh and Second Street, she saw her estranged husband, Mr. Webb, in his Honda Ridgeline. Ms. Webb testified that as the two passed each other in the intersection, Mr. Webb yelled a profanity at her, but Ms. Webb ignored him and continued driving. A couple of blocks later, when Ms. Webb approached the intersection of 12th Street and Payne, she saw Mr. Webb approach a nearby stop sign and then begin to drive directly towards her car. Ms. Webb swerved in an attempt to avoid a collision but was unsuccessful. Mr. Webb hit the Murano with enough force that the airbags deployed and a number of car parts scattered across the road. Mr. Webb fled the area, and Ms. Webb exited her car and attempted to call 911.
[¶4] Before Ms. Webb could connect with the 911 operator, she heard “ear engines revving up.” When she looked up, she saw the Honda Ridgeline turn the comer. She ran into a nearby yard and Mr. Webb drove his vehicle quickly from the roadway, onto a sidewalk, and toward Ms. Webb. Ms. Webb was able to jump out of the Ridgeline’s path and, with the help of a Good Samaritan, sought refuge in the basement of the Samaritan’s home. Again, Mr. Webb fled the scene, striking a parked vehicle in the process. After abandoning the Ridgeline and taking his mother’s car, Mr. Webb drove to Las Vegas, Nevada, and turned himself into the authorities three days later.
[¶5] On July 1, 2014, the State charged Mr. Webb with one count of aggravated assault and battery -with a deadly weapon in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and (a)(iii) (LexisNexis 2013).
[¶6] Before the charges alleged in the new Information were bound over to the district court, Mr. Webb’s counsel requested that he receive a competency evaluation. The circuit court granted the motion, and after an evaluation was conducted at the Wyoming State Hospital, the circuit court deemed Mr. Webb competent to proceed. The case was bound over to the district court and proceeded to trial.
[¶7] The week-long trial began on July 27, 2015, and the jury found Mr. Webb guilty of all counts. The district court sentenced him to serve concurrent terms of five to seven
DISCUSSION
Wyoming Buie of Criminal Procedure 48
[¶8] Mr. Webb contends the State violated his right to a speedy trial under W.R.Cr.P. 48. We review speedy trial claims de novo. Rhodes v. State,
[¶9] The relevant portions of Rule 48 state:
Rule 48. Dismissal; speedy trial.
(a) By attorney for the state. — The attorney for the state may, by leave of court, file a dismissal of an indictment, information or citation, and the prosecution shall thereupon terminate, Such a dismissal may not be filed during the trial without the consent of the defendant.
(b) Speedy trial—
(1) It is the responsibility of the court, counsel and the defendant to insure that the defendant is timely tried.
(2) A criminal charge shall be brought to trial within 180 days following arraignment unless continued as provided in this rule.
[[Image here]]
(6) Any criminal .case not tried or continued, as provided in this rule shall be dismissed 180 days after arraignment.
[[Image here]]
(7) A dismissal for lack of speedy trial under this rule shall not bar the state from again prosecuting the defendant for the same offense unless the defendant made a written demand for a speedy trial or can demonstrate prejudice from the delay..
[¶10] A plain reading of Rule 48(b)(7) makes it clear that Mr. Webb’s speedy trial demand can affect the- re-filing of charges only if the previous charges were dismissed due to- a lack of speedy trial. W.R.Cr.P, 48(b)(7). That was not the case here. The State chose to file a new Information that included the second degree murder charge and then voluntarily dismissed the Information that had been filed on July 31,2014. The dismissal could not have been based on a speedy trial violation because only ninety-two days had elapsed between the filing of, the July 31 .Information and its subsequent dismissal — approximately half-of the 180 days allowed under Rule 48(b)(2).
[1Í11] Mr. Webb relies on Hall v. State,
[¶13] Mr. Webb also claims the State violated Rule 48 because it acted in bad faith when it dismissed the July 31, 2014 Information. However, the basis of this argument is meager, to say the least. Mr. Webb cites to the motion to dismiss he filed' in the district court, wherein his counsel apparently quoted language from the State’s motion 'to dismiss the July 31 Information.
Constitutional Right to a Speedy Trial
[1Í14] Mr. Webb also argues that his speedy trial rights under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution were violated. Again, we review this claim de novo. Rhodes, ¶ 9,
[¶15] When analyzing a constitutional speedy trial claim, we look at the four factors established by the United States Supreme Court in Barker v. Wingo: “(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s, assertion of his right; and (4) the prejudice to the defendant.” Id., ¶ 17,
[¶16] Turning to the length of the delay, this Court has never held that a specific length of delay is sufficient to constitute an automatic speedy trial violation. Mascarenas, ¶ 12,
[¶17] The second Barker factor requires us to consider the reasons for the delay in bringing Mr. Webb to trial. Rhodes, ¶ 17,
[¶18] Mr. Webb argues that, with the exception of the delay caused by the competency evaluation, the entirety of the delay in Mr. Webb’s trial was caused by the State. Certainly, some delay is attributable to the State and its decision to twice dismiss and re-file the Information. However, Mr. Webb was also responsible for some of the delay. As the State points out, Mr. Webb fled to Las Vegas immediately after commission of the crime. He turned himself in to the Las Vegas police on July 3, 2014, and arrived in Wyoming to face the charges against him on July 23, 2014. Therefore, while the State' had filed charges on July 1, 2014, Mr. Webb’s decision to flee the jurisdiction delayed any progress in the proceedings by twenty-three days.
[¶19] Further, Mr. Webb is also partially responsible for choosing the date in which his trial began. At a scheduling conference, the district court offered a proposed trial date in early July.
[¶20] Finally, the trial was delayed seventy-five days so that Mr. Webb could undergo a competency evaluation. Delays attributable to competency evaluations are considered a neutral factor in the analysis. Castellanos, ¶ 72,
[¶21] Next, we must consider whether Mr. Webb asserted his right to a speedy trial. Rhodes, ¶ 17,
[¶22] However, despite these assertions, a week before the trial' was scheduled to commence, Mr. Webb’s counsel requested that Mr. Webb undergo a second competency evaluation. Further, Mr. Webb wrote a letter to the district court approximately two weeks before the commencement.of trial, requesting that the district court appoint him new counsel. At the hearing on the matter, Mr. Webb specifically requested new counsel and a continuance of the trial date so that his new counsel could prepare for trial. While the district court ultimately denied both of these requests, -making these requests in the first instance is inconsistent with one .vigorously asserting his right to a speedy trial. Therefore, .this factor weighs slightly in. Mr. Webb’s favor, but is given little weight in the overall speedy trial analysis. Lafferty v. State,
[¶23] The final factor in the Barker analysis requires us to consider the prejudice Mr. Webb suffered as a result of the delay in his trial. Rhodes, ¶ 17,
“(1) lengthy pretrial incarceration; (2) pretrial anxiety; and (3) impairment of the defense.” (Ortiz, ¶ 59,326 P.3d at 896 (quoting Berry [v. State,2004 WY 81 ] ¶ 46, 93 P.3d [222] at 237 [ (Wyo. 2004) ])). “Pretrial anxiety ⅛ the least significant’ factor and because a ‘certain amount of pretrial anxiety naturally exists,’ an appellant must demonstrate that he suffered ‘extraordinary or unusual’ pretrial anxiety.” Potter v. State,2007 WY 83 , ¶ 41,158 P.3d 656 , 666 (Wyo. 2007) (quoting Whitney v. State,2004 WY 118 , ¶ 54,99 P.3d 457 , 475 (Wyo. 2004)). “The impairment of defense factor is the most serious because it impacts the defendant’s ability to prepare his case and skews the fairness of the entire system.” Durkee, ¶ 37,357 P.3d at 1116 .
[¶24] As stated above, 396 days elapsed between the' date the State filed the first Information against Mr. Webb and the conclusion of his tidal. We recognize that Mr. Webb likely experienced pretrial anxiety regarding finances, employment, and ability to associate with family, just as ‘ most defendants experiénce in that situation. Tate, ¶ 40,
[¶25] Mr. Webb also argues he suffered prejudice because the delay impaired his defense. When reviewing whether the delay impaired the defense, we consider “whether the delay resulted in a loss of evidence or impaired the defense by the ‘death, disappearance, or memory loss of witnesses for the defense.’ ” Castellanos, ¶ 90,
THE COURT: And then what’s your understanding of the time line on the vehicle that you’ve discussed?
[[Image here]]
[DEFENSE COUNSEL]: Your Honor, it’s my understanding from [co-counsel] that the Murano was never taken into evidence. In fact, it was just released back to the victim.
THE COURT: So how does the delay impact that if it never was taken into evidence?
[DEFENSE COUNSEL]: I don’t believe a delay impacts that, but a prejudice to Mr, Webb in that we- could not have Mr. — that we could not inspect that.
THE COURT: That would — the condition would have existed even if there was a timely trial in the first filing; correct?
[DEFENSE COUNSEL]: Under this scenario, yes. Yes.
The record is clear that the delay in bringing this case to trial had no impact whatsoever on the defense’s ability to access the vehicle as it was never in the State’s possession.
■ [¶26] Mr. Webb further argues he was prejudiced when “witness recollections changed as a result of the passage of time, and not in Mr. Webb’s favor.” This allegation, however, is not supported by anything more-than Mr. Webb’s bare assertions. Neither Mr. Webb’s brief nor the record show that any of the changes in the witnesses’ statements were due to any sort of memory loss. Instead, it appears to simply be abase of inconsistent statements and testimony, and Mr. Webb had the opportunity to cross-examine each of those witnesses about the inconsistencies. For this reason, we find Mr. Webb’s defense was not hindered, by the delay and this factor does not weigh in his favor.
[¶27] When we balance all of the Barker factors, we conclude that Mr. Webb’s right to a speedy trial was not violated. The reason for the delay is a neutral factor, while Mr.
Prosecutorial Misconduct
[¶28] Mr, Webb argues the prosecutor committed misconduct in his closing argument when he discussed the defense’s eyewitness expert. The parties agree that Mr. Webb did not object to the prosecutor’s closing statement and, therefore, our review is limited to a search for plain error. To succeed on plain error review, Mr. Webb must demonstrate that: (1) the record clearly reflects the error; (2) the alleged error violated a cleai’ and unequivocal rule of law; and (3) the alleged error caused Mr. Webb material prejudice. Anderson v. State,
[¶29] We recite the paragraph containing the offending statement in its entirety to give full context to the prosecutor’s argument:
We heard testimony yesterday from Dr. Loftus. He talked a lot of generalities about people’s memories.- Ladies and gentlemen, the important thing I think to take away from Dr. Loftus’s testimony was that he’s testified 380 times prior, one-time for the prosecution, Pretty fat check, 7,500 bucks. But he generally didn’t talk about this case. He also said physical ■ evidence will corroborate eyewitnesses. Ladies and gentlemen, you have that physical evidence. You have the photos. You got the tire tracks through the yard. You got the path of travel, where the eyewitnesses put Ms. Webb. You have the defendant’s vehicle. You have photos of Julie’s vehicle. You get to judge by the instructions what weight to give testimony. That is the role of the jury. You can determine that. But you also have to look at all of the evidence. Mr. Loftus said, you know, I didn’t look at photographs; I didn’t listen to the 911 tape, or the police reports, some of the witness interviews. You have far more evidence before you folks than Dr. Loftus had. It is the little things that you look for. Look at the tire tracks. Do they comport with what the witnesses said? Does it comport with what Julie said? If you look at the rim marks and the gouges across Payne, does that comport with what Officer Rockwell said about his speed? Greg George, who said he had a Ford and just passed him on the right-hand side of the road? It does, ladies and gentlemen.
(emphasis added). Mr. Webb objects-to the emphasized sentence in the prosecutor’s closing argument cited above. Therefore, the alleged error is clearly reflected in the record and Mr. Webb has satisfied the first part of .the plain error analysis.
[¶30] Mr. Webb argues this statement was a misstatement of the law because it implied to the jury that Dr. Loftus should have testified about the specifics of the case, although established case law would have prohibited such testimony. Wyoming law is clear that juries “are extended the responsibility to resolve the factual issues, judge the credibility of witnesses, and ultimately determine whether the accused is guilty or innocent.” Martin v. State,
[¶82] Finally, Mr. Webb has failed to demonstrate that the result of the trial would have been different if the prosecutor had not made the statement in question. Anderson, ¶ 40,
Ineffective Assistance of Counsel
[¶33] Mr. Webb asserts that he received ineffective assistance of trial counsel when his counsel did not request a jury instruction on accident. He argues that without an instruction, there was no way the jury could have acquitted him of the aggravated assault and battery charge or the attempted second degree murder charge. “Claims of ineffective assistance of counsel involve mixed questions of law and fact and are reviewed de novo.” Starr v. State,
[¶34] In order to prevail on an ineffective assistance of counsel claim, Mr. Webb must satisfy the two-part test from Strickland v. Washington,
[¶35] Here, we need not determine whether counsel was deficient because Mr. Webb has failed to demonstrate that the outcome of the trial would have been different had the jury received an accident instruction. Mr. Webb spends a significant amount of his argument explaining why an accident instruction would have been appropriate in these circumstances, but provides only a conclusory basis that the lack of the instruction was prejudicial. Additionally, Mr. Webb has not given this Court any indication of what an accident instruction in this case should look like, leaving us to speculate about what trial
[¶36] Even assuming defense counsel had requested an accident instruction and the district court had granted the request, it would not have changed the outcome of the proceeding. Mr. Webb does not argue the district court failed to properly instruct the jury about the elements of aggravated assault and battery and attempted second degree murder. As other courts have recognized, if the element instructions given to. the jury were otherwise correct, it is unlikely that omitting an accident instruction would ever satisfy a test that requires an appellant demonstrate a different outcome at trial. State v. Crawford,
[¶37] Here, the district court properly instructed the jury that in order to convict Mr. Webb of aggravated assault and battery, the jury had to determine beyond a reasonable doubt that Mr. Webb either “attempted to cause bodily injury to another person with a deadly weapon” or “threatened to use a drawn deadly weapon....” The jury was also instructed that “[a] ‘threat’ is an expression of an intention to inflict pain, injury or punishment.” With respect to attempted second degree murder, the court instructed the jury it must find beyond a reasonable doubt that Mr. Webb intended to commit the crime of second degree murder, and the elements of second, degree murder require that Mr. Webb purposely and maliciously acted. The jury was informed “purposely” means intentionally and that “malice” means “the act constituting the offense as done recklessly under circumstances manifesting an extreme indifference to the value of human life....” Mr. Webb was not precluded from arguing the events at issue were the product of an accident and the jury was certainly at liberty to consider that argument. However, because the jury determined Mr, Webb was guilty of aggravated assault and battery and attempted second degree murder, it necessarily determined Mr. Webb’s actions were intentional and not due to an accident. See id. (“If the jury believes the defendant’s accident argument, it would be required to find the defendant not guilty pursuant to the court’s general instructions.”), Tembe,
[¶38] Mr. Webb has failed to demonstrate that the outcome of his trial would have been different,had counsel requested an accident instruction and, therefore, has failed to prove prejudice. Consequently, Mr. Webb has failed to demonstrate that he received ineffective assistance of trial counsel.
Inference of Malice Instruction
[¶39] Mr. Webb claims his right to a fair trial was denied when the district court provided the following instruction to the jury:
You are instructed that you may, but are not required to, infer malice from the use of a deadly weapon. The existence of malice, as well as each and every element of the charge of Attempt to Commit Second Degree Murder, must be proved beyond a reasonable doubt.
Mr. Webb claims that, while this Court has previously approved of this exact instruction, it is no longer appropriate due to the new definition of “malice” in homicide cases. Mr.
[¶40] The instruction is clearly reflected in the record; however, Mr. Webb cannot demonstrate the district court violated a clear and unequivocal rule of law in a clear and obvious, and not merely arguable, way when it gave the jury this instruction. See Jealous v. State,
[¶41] Further, this Court’s approval of this instruction in Hereford occurred approximately three months after we refined the definition of “malice” in Wilkerson v. State,
Double Jeopardy
[¶42] In his final argument, Mr. Webb claims that his convictions for aggravated -assault and battery with a deadly weapon and attempted second degree murder — that were both premised upon him driving his vehicle through the yard and almost striking Ms, Webb — violated the United States Constitution’s prohibition against double jeopardy. Mr. Webb did not raise a double jeopardy claim in the district court, thereby limiting our review of his claim to one for plain error. Bowlsby v. State,
[¶43] The record is clear that Mr. Webb was convicted and sentenced separately for the aggravated assault and battery and the attempted second degree murder, satisfying the first part of the plain error test. Mr. Webb, however, cannot demonstrate the district court violated a clear and unequivocal rule of law when it entered convictions and sentenced him for both crimes. He acknowledges that this Court found contrary to his position on this precise issue less than one year ago in Jones v. State,
[¶44] In Jones, this Court held that, under the Blockburger “same elements” test, convictions for aggravated assault and battery with a deadly weapon and attempted second degree murder, do not ran afoul of the United States Constitution’s prohibition against double jeopardy, even though both charges stem from the exact same factual premise, Jones, ¶ 22,
We do not concern ourselves with how those elements are proven in that defendant’s’case — that is, we look to what the legislature says must be proven, not-the facts or evidence used in a particular case to establish that ultimate fact. Nor is it of any moment that such facts or evidence incidentally may also tend to prove an element of -another crime with which the defendant is charged.
[¶45] Although Jones was published almost a year after Mr. Webb had been sentenced, it did not overrule any precedent that would have supported a conclusion that Mr. Webb’s convictions and sentences violated the prohibition against double jeopardy. Instead, it simply reaffirmed our decision in Sweets v. State,
[¶46] Further, we are not persuaded that our decision in Jones is affected by’the Unib-ed States Supreme Court’s decision in Ball. In Ball, the defendant was charged and convicted of receiving a firearm shipped in interstate commerce in violation of 18 U.S.C. §§ 922(h)(1) and 924(a), and for possessing that same firearm in violation of 18 U.S.C.App § 1202(a)(1). Ball,
[¶47] The elements in question here are malice (attempted - second degree murder) and use of a deadly weapon (aggravated assault and battery with a deadly weapon). Unlike the relationship between the elements of receipt and possession in Ball, malice (and the second degree murder statute in general) does not necessarily include proof of use of a deadly weapon. As we - explained in Jones, there are many ways an individual can attempt to kill another that does not include the use of a deadly weapon. Jones, ¶ 19,
CONCLUSION
[¶48] Mr. Webb received- a speedy trial as required by W.R.Cr.P. .48 and the United States and Wyoming Constitutions. The prosecutor did not commit misconduct in his closing argument when he .discussed Dr. Loftus, and Mr. Webb received the effective, assistance of trial counsel. Further, the district court properly instructed the jury that it may infer malice from Mr. Webb’s use of a deadly 'weapon. Finally, the district court did not violate Mr. Webb’s constitutional protection against double jeopardy when it imposed separate- sentences for aggravated assault and battery with a deadly weapon and attempted second degree murder. ■
[¶49] Affirmed.
Notes
. § 6-2-502. Aggravated assault and battery; penalty.
(a) A person is guilty of aggravated assault and battery if he;
[[Image here]]
(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to anotherf.]
. § 6-1-301. Attempt; renunciation of criminal Intention.
(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step” is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime[.]
§ 6-2-104. Murder in the second degree; penalty.
Except as provided in W.S. 6-2-109, whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life.
. At the time of Hall's prosecution, Rule 48 required the State to bring defendants to trial within 120 days of arraignment, W.R.Cr.P. 48(B)(6) (LexisNexis 1991).
. The State's motion to dismiss the July 31 Information is not included in the record ón appeal.
. The dissent argues for a new requirement under Rule 48 requiring the State to "demonstrate it did not dismiss and refile in order to avoid the speedy trial deadline” before the 180 day time limit is reset. We have not previously found such a requirement in the rule. Attorneys and judges in pending cases likely have relied on the rule without such a requirement. If such a requirement is to be added to Rule 48, that requirement should be accomplished by an amendment to the rule, with advance notice to the bar and to trial courts,.and not by this Court suddenly changing its interpretation of the rule.
. The State asserts the record indicates the court offered a trial setting that began on June 29, 2015. However, the record does not clearly reflect that date. Instead, this Court is able to glean the proposed date only from a statement made by the prosecutor: "Would it be more advantageous — my trial calendar doesn't go that far; but I’m assuming you have a stack around the first part of July, around the 5⅛, if my math is accurate.” The district court responded: "We do; however, on that day, we run into the parade day issue, which prevents us from going the full five.” At no point in the transcript does the court or the parties identify the exact date being discussed. July 5, 2015, fell on a Sunday, so it is possible the proposed trial date was July 6. Due to the ambiguity in the record, we will give Mr. Webb the benefit of the doubt and proceed as if the proposed trial date was July 6.
Concurrence in Part
concurring in part, and dissenting in part, in which BURKE, Chief Justice, joins.
[¶50] I concur in most -of the majority opinion, but I write separately on one issue upon which I fear that the Court has proceeded down a technically correct trail of precedent to arrive at a rule of law whose application yields a result that is contrary to the spirit and purpose of the original rule. Our acquiescence in the State’s repeated circumvention of the speedy trial rule by dismissing
W.R.Cr.P. Rule 48
[¶51] “A fundamental purpose of the speedy trial statute and rale is to prevent unnecessary prosecutorial and judicial delays to a pending criminal proceeding. The public interest and the interest of the accused require an expeditious determination of guilt or innocence so that the guilty can be sentenced and the innocent exonerated.” People v. Moye,
[¶52] Allowing the State to restart the speedy trial clock by dismissing and refiling charges defeats the purpose of the rule.
[¶53] A rule that would allow the speedy trial clock to restart only where the intent of
[¶54] Some courts adopting exceptions to resetting the speedy trial clock require a showing of bad faith on the part of the State or prejudice to the defendant before the exception applies. See State v. Rose,
[¶55] Other courts take a different approach. As the New Mexico Supreme Court explained, the right protected by the rule
is a criminal defendant’s right, not that of the State, the courts, or any other party; it is not a tool to punish the State for dismissing and refiling cases in bad faith, nor should its diminution be a reward for the State’s good behavior. Viewed in that light, the cases in which courts have conducted a “good faith-bad faith” analysis regarding the State’s reasons for dismissing and refiling a case in order to determine if a new six-month time period should be granted are misguided. Instead, any inquiry into the State’s reasons for dismissing and refiling in district court should be done within the context of any speedy trial challenge the defendant may raise after the case is refiled in district court.
State v. Savedra,
[¶56] The better-reasoned approach places the burden on the State to establish that it has been prosecuting the matter diligently and that it dismissed and refiled charges for proper reasons and not to evade the speedy trial deadline set forth in the rule. For example, in New Mexico, “the burden is east upon the state to show that any delay in prosecution resulting from a dismissal of charges was occasioned for proper reasons.... ” State v. Aragon,
• [¶57] In the instant case whether the speedy trial calculation begins anew on the refiling of charges should depend on whether the State refiled to avoid running-the speedy clock timeline or whether it had a proper purpose. There is a suggestion in the record that the State explained that it filed a new case because Mr. Webb failed to accept a plea agreement and because the new charges were more accurate. I would remand the case so that the trial court could make a determination whether the State met its burden to demonstrate it did not dismiss and-refile' in order to avoid the'speedy trial deadline.
. We have seen numerous appeals in the last ten years where the State has filed, dismissed, and refiled charges, resulting in more than 180 days from the initial arraignment to trial. See, e.g., Tate v. State,
. Federal courts applying the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), have recognized this. See e.g., United States v. Rojas-Contreras,
. This paragraph cites Hall v. State,