NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION III

CACR 01-1437

November 13, 2002

RUDOLPH ZANGERL APPEAL FROM ARKANSAS COUNTY

APPELLANT CIRCUIT COURT

[CR-2000-14]

v.

HONORABLE RUSSELL ROGERS,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE REVERSED AND DISMISSED

Rudolph Zangerl was convicted in a bench trial of DWI, Third Offense, and was sentenced to ninety days in jail with thirty days suspended, was assessed a fine and court costs, and was ordered to perform community service. Zangerl's sole point on appeal is that the trial court erred in denying his motion to dismiss for failure to comply with the speedy trial requirements of Ark. R. Crim. P. 28. We agree that denial of the motion was error and reverse and dismiss.

Zangerl was arrested on August 25, 1999, for driving while intoxicated. He was charged in Humphrey Municipal Court with DWI, Third Offense. A plea date set for September 14, 1999, was rescheduled at Zangerl's request to give him time to consult an attorney. On November 9, Zangerl pled not guilty, and the trial was set for December 14, 1999. The case was transferred on December 14 to circuit court because the State believed this was Zangerl's fourth DWI offense, and consequently, a felony.

Much of the record pertinent to the speedy trial calculations is found only in the trial court's docket sheets and appears to have been documented after the fact in some instances. A felony information for DWI, Fourth Offense, was filed in Arkansas County Circuit Court on January 18, 2000. A pre-trial hearing was set for June 12, 2000, but Zangerl moved for a continuance, which was granted. The continuance order was filed on June 13, and the hearing was reset for June 26, 2000, thirteen days later. On June 21, defense counsel filed two motions to exclude prior convictions. At the June 26, 2000 hearing, these motions were briefly discussed.

A trial date was set, but a continuance was granted on August 1 at Zangerl's request, and the trial was rescheduled for August 10. Trial was again rescheduled on August 16 due to "docket congestion," for October 10, 2000. The trial court granted another continuance on behalf of Zangerl on October 19, and reset the trial for January 4, 2001. This trial date was next moved on January 11 at the State's request to February 13, 2001. The trial was rescheduled for the last time on March 1, after Zangerl waived his right to a jury trial, for April 16, 2001.

Zangerl filed a motion to dismiss on April 9, on the grounds that the State had failed to comply with the speedy-trial rules. Arguments were heard on April 16, just prior to trial. The motion was denied and the non-jury trial commenced. The trial court found Zangerl guilty of Driving While Intoxicated, Third Offense, a misdemeanor. Zangerl was sentenced to 90 days in jail with 30 days suspended, fined $3,500, ordered to perform 720 hours of community service, and was assessed court costs of $300.

Zangerl's sole point on appeal is that the trial court erred in the denial of his motion to dismiss because the State violated his right to a speedy trial by not bringing his case to trial within twelve months as required by Ark. R. Crim. P. 28.1. He argues that, after all delays for which he is responsible are excluded, his trial was held 411 days after his arrest for DWI.

Rules 28.1(c) and 28.2(a) of the Arkansas Rules of Criminal Procedure require the State to bring a defendant to trial within twelve months from the date of arrest. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Delays resulting from continuances granted at the request of the defendant are excluded in calculating time for a speedy trial. Id.; Ark. R. Crim. P. 28.1(c)(2002). Once a defendant presents a prima facie case of a speedy-trial violation, that is, his trial is or will be held outside the applicable speedy trial period, the State has the burden of showing that the delay was the result of defendant's conduct or was otherwise justified. Ferguson, supra.

Zangerl concedes certain periods of delay attributable to him that total 188 days. His periods of exclusion are as follows:

Sept. 16, 1999 to Nov. 9, 1999-56 days

June 21, 2000 to July 26, 2000-35 days

July 6, 2000 to Aug. 8, 2000-35 days

Feb. 13, 2001 to April 16, 2001-62 days

Zangerl argues that even with these periods excluded, he was denied his right to a speedy trial as he was arrested on August 25, 1999, and his case was not tried until April 16, 2001, a full 599 days after his arrest.

In its response, the State asserts that Zangerl miscalculated the length of the delays attributable to him and conceded twenty days too many. It also argues that rather than thirty-five days, the entire period from the filing of Zangerl's motion on June 21, 2000, until a later "docket entry" or "at least" until October 19, 2000, should be charged to Zangerl because the trial court was awaiting a brief from him. The State contends that even with the addition of the twenty days chargeable to it, if the latter period is excluded, Zangerl's trial occurred 361 days after his arrest and was thus not in violation of the speedy-trial rules.

The State's argument is unpersuasive. The excluded period for pretrial motions under the speedy-trial rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court, but not more than thirty days. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). The motions were filed on June 21, 2000, and were discussed at a June 26, 2000 hearing. Although the trial court did set a date for briefs on the issue, it is unclear when or if a brief was filed by Zangerl before the thirty days expired. In any event, Arkansas Rule of Criminal Procedure 28.3(a) provides that only thirty days of this time should count against the defendant.

Moreover, a continuance was docketed on August 16, 2000, which set a trial date for October 12, 2000, due to "docket congestion." Arkansas Rule of Criminal Procedure 28.3(b), which includes a list of excludable periods, provides:

(b) The period of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted:

(1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled;

(2) the court determines that the delay will not prejudice the defendant; and

(3) the trial court schedules the trial on the next available date permitted by the trial docket.

The trial court clearly failed to comply with the requirements of 28.3(b), as the only notation on the docket sheet is "docket congestion." As a result, the period of August 16, 2000, to October 12, 2000, fifty-eight days, clearly counts against the State's time. This time, when added to the State's 361 days, places Zangerl's trial well beyond the 365 days permitted by the rule.

Reversed and dismissed.

Stroud, C.J., and Hart, J., agree.