{
  "id": 6141199,
  "name": "Tony SHAW v. STATE of Arkansas",
  "name_abbreviation": "Shaw v. State",
  "decision_date": "1986-07-09",
  "docket_number": "CA CR 86-31",
  "first_page": "243",
  "last_page": "247",
  "citations": [
    {
      "type": "official",
      "cite": "18 Ark. App. 243"
    },
    {
      "type": "parallel",
      "cite": "712 S.W.2d 338"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "266 Ark. 59",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8717360
      ],
      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/266/0059-01"
      ]
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    {
      "cite": "284 Ark. 560",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1878668
      ],
      "weight": 2,
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/ark/284/0560-01"
      ]
    }
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  "last_updated": "2023-07-14T19:17:44.845649+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Cracraft, C.J., and Cloninger, J., agree."
    ],
    "parties": [
      "Tony SHAW v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Judge.\nAppellant appeals from a conviction for driving while intoxicated. His only point for reversal is that the trial court erred by overruling his motion to dismiss for lack of a speedy trial. We agree, and reverse.\nThe following is a chronology of significant events:\nJuly 17, 1983 Ticket issued to appellant.\nAugust 4, 1983 Appellant convicted in Monticello Municipal Court.\nAugust 17, 1983 Appellant appealed to circuit court.\nJuly 10, 1985 Case set for non-jury trial on August 19, 1985.\nJuly 24, 1985 Appellant filed request for a jury trial, and moved to dismiss for lack of a speedy trial.\nNovember 14, 1985 Jury trial held following the circuit court\u2019s decision to overrule appellant\u2019s motion to dismiss.\nRule 28.1 (c) of the Arkansas Rules of Criminal Procedure provides:\nAny defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty. . .shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. [Emphasis added.]\nIn this case, it is undisputed that the trial occurred nearly twenty-seven months after the case was appealed to circuit court. Therefore, the burden is upon the State to show good cause for an untimely delay in the trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).\nThe State concedes that the eighteen-month-limitation time began to run on August 17, 1983, but it argues that, under A.R.Cr.P. Rule 28.3, the following three periods of time should be excluded: (1) a five-month period during which the circuit judge was ill, (2) the time between appellant\u2019s request for a jury trial and the trial date, and (3) the delay due to a congested trial docket.\nThe trial court erred by failing to comply with three sections of Rule 28.3. First, we note that the trial judge altogether failed to comply with Rule 28.3(i), which provides:\nAll excluded periods shall be set forth by the court in a written order or docket entry. The number of days of the excluded period or periods shall be added to the number of months applicable to the defendant as set forth in Rule 28.1(a), (b) and (c) to determine the limitations and consequences applicable to the defendant. [Emphasis added.]\nThe record does not contain any written order or docket entry setting forth the excluded periods or the number of days in each period. The judge\u2019s only discussion of the excluded periods came at the time he overruled the motion to dismiss, when he verbally listed the excluded periods without specifying the number of days in each period.\nNext, the trial judge failed to follow Rule 28.3(b) and (c), which provide exclusions for:\n(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.\n(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance. [Emphasis added.]\nIn Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979), the trial judge failed to follow Rule 28.3(b) by not stating the exceptional circumstances requiring a delay due to a congested docket. There, the supreme court stated that Rule 28.3(b) obviously contemplates that a trial judge will regularly call the docket, and if a case is to be continued beyond the time permitted by law, then the reasons will be stated. In Harkness, the supreme court held that the trial court\u2019s findings, entered only after a motion to dismiss was filed, did not constitute sufficient grounds to exclude any term of the trial court.\nHere, there was neither an order continuing the case nor an order setting forth the \u201cexceptional circumstances\u201d necessitating the delay. In fact, there is nothing in the record to indicate that appellant even requested a continuance under Rule 28.3(c). The State contends that, by requesting a jury trial, appellant, in effect, requested a continuance. Even if the State were correct in this argument, which we do not accept, the trial court still erred by failing to make a written order or docket entry granting the continuance.\nBecause the trial j udge failed to comply with the rule set forth above, we must reverse and dismiss this cause.\nReversed and dismissed.\nCracraft, C.J., and Cloninger, J., agree.",
        "type": "majority",
        "author": "Tom Glaze, Judge."
      }
    ],
    "attorneys": [
      "Gibson, Gibson & Has ham, by: John F. Gibson, Jr., for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Joel O. Huggins, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Tony SHAW v. STATE of Arkansas\nCA CR 86-31\n712 S.W.2d 338\nCourt of Appeals of Arkansas Division II\nOpinion delivered July 9, 1986\nGibson, Gibson & Has ham, by: John F. Gibson, Jr., for appellant.\nSteve Clark, Att\u2019y Gen., by: Joel O. Huggins, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0243-01",
  "first_page_order": 265,
  "last_page_order": 269
}