{ "id": 1914683, "name": "William RHODES v. Hon. Ted CAPEHEART, Circuit Judge", "name_abbreviation": "Rhodes v. Capeheart", "decision_date": "1993-05-03", "docket_number": "CR 92-1223", "first_page": "16", "last_page": "23", "citations": [ { "type": "official", "cite": "313 Ark. 16" }, { "type": "parallel", "cite": "852 S.W.2d 118" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "301 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885532 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0586-01" ] }, { "cite": "38 Ark. App. 155", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139306 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i)" }, { "parenthetical": "when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i)" } ], "opinion_index": 0, "case_paths": [ "/ark-app/38/0155-01" ] }, { "cite": "301 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885533 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0446-01" ] }, { "cite": "303 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882807 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0637-01" ] }, { "cite": "306 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900914 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0153-01" ] }, { "cite": "277 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750225 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0061-01" ] }, { "cite": "297 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891341 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0488-01" ] }, { "cite": "300 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886735 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "67" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ark/300/0066-01" ] }, { "cite": "307 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902482 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0001-01" ] }, { "cite": "312 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935064 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0106-01" ] }, { "cite": "291 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872619 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0633-01" ] }, { "cite": "288 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718351 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0173-01" ] }, { "cite": "295 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893761 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0385-01" ] }, { "cite": "305 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916748 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0272-01" ] }, { "cite": "309 Ark. 124", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906009 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0124-01" ] }, { "cite": "263 Ark. 217", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672616 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "219" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ark/263/0217-01" ] }, { "cite": "295 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893817 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0551-01" ] }, { "cite": "303 Ark. 309", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882749 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "311" }, { "page": "838" }, { "page": "312" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ark/303/0309-01" ] }, { "cite": "846 S.W.2d 646", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1935022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0001-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-14-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 666, "char_count": 12864, "ocr_confidence": 0.905, "pagerank": { "raw": 2.252572508141204e-07, "percentile": 0.7817141076564695 }, "sha256": "55f9bf7faa1dde6b2c137f827fe53027d62fa7026b4761c76b86290ebf83e164", "simhash": "1:5b20d6bf310ad1d5", "word_count": 2271 }, "last_updated": "2023-07-14T19:14:05.799320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William RHODES v. Hon. Ted CAPEHEART, Circuit Judge" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis is a speedy trial case. Appellant William Rhodes was arrested and charged with Sexual Abuse in the First Degree pursuant to Ark. Code Ann. \u00a7 5-14-108 (1987) on March 29,1990 and has not yet been tried. Rhodes filed a petition for writ of prohibition to this court on October 26, 1992 to prevent his trial pursuant to Ark. R. Crim. P. 28.1(d).\nThe trial court made the following findings by order or by docket entry:\nMarch 29, 1990 Rhodes\u2019 arrest and charge-original trial date set for March 11, 1991\nMarch 1, 1991 Rhodes\u2019 first motion for continuance granted from March 11 to April 9, 1991\nApril 8, 1991 Rhodes\u2019 second motion for continuance granted from April 11 to August 23, 1991\nAugust 19, 1991 Rhodes\u2019 motion to compel discovery granted\nAugust 22, 1991 First pretrial hearing-court granted Rhodes a continuance until September 20, 1991\nSeptember 11, 1991 Second pretrial hearing\nSeptember 20, 1991 Second trial date\nOctober 26, 1992 Rhodes filed a writ of prohibition\nThere is nothing in the record as to what happened on the trial date of September 20, 1991. The record, supplemental record, and three briefs filed by both petitioner and respondent fail to indicate if Rhodes appeared for trial and the docket sheet is also silent in this regard.\nRhodes argues that despite the periods excluded by the court from the speedy trial period, the State has failed to bring him to trial within one year as required by Ark. R. Crim P. 28.1 (b). The State responds that Rhodes\u2019 method of calculating excludable periods for speedy trial purposes is wrong.\nThis Court will not grant a writ of prohibition unless it is clearly warranted. Turbyfill v. State, 312 Ark. l, 846 S.W.2d 646 (1993); Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)). Arkansas R. Crim. P. 28.1 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Callender v. State, 263 Ark. 217, 219, 563 S.W.2d 467, 468 (1978). Further, a writ of prohibition is proper to prevent a court from exercising a power not authorized by law and where there is no other remedy available. Id.\nOnce it was shown that trial was scheduled to be held after the speedy trial period had expired, the State had the burden of showing that any delay was the result of the petitioner\u2019s conduct or was otherwise legally justified. Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992); Tlapek v. State, 305 Ark. 272, 807 S.W.2d 467 (1991); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988); Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986).\nRhodes\u2019 period for speedy trial began when his criminal charge was filed on March 29, 1990. Ark. R. Crim. P. 28.2(a). See Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Therefore, absent any excludable periods, he originally should have been tried no later than March 28,1991. Three hundred and forty-eight (348) days, passed from the charge to the first continuance, so the State only had seventeen (17) days to spare before the one year period ended.\nIn 1991, three continuances were granted by the trial court. The first continuance, from March 11 through April 9, was specifically excluded from the speedy trial period. The second continuance from April 8 through August 23 was likewise specifically excluded. A third continuance was granted by the court at the hearing on August 22 from that date until September 20, the date set for trial, with the time to be excluded. Delays resulting from continuances given at the request of the defendant are excludable in figuring the time for a speedy trial. Ark. R. Crim. P. 28.3(c). Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Rhodes concedes that these three consecutive continuances, from March 11 through September 20, were properly charged to him and were appropriately excluded from the speedy trial period. Thus, the disputed time period begins on September 20, the date set for trial, and continues until October 26, 1992, when this writ of prohibition was filed.\nAt the heart of this issue is the exchange between defense counsel and the trial judge at the September 11 pretrial hearing:\nThe Court: [On the speedy trial motion], we counted those days and what you\u2019re saying is that since that time because the State hadn\u2019t provided the discovery and I\u2019m guessing at what you\u2019re saying, from the date of the last trial setting till today shouldn\u2019t be excluded because the State was at fault. Would that be your argument?\nDefense Counsel: [Yes]\nThe Court: It would be the Court\u2019s opinion that both of you were at fault because you-all waited until the day before the trial to worry about discovery and I think that period should be excluded. I would say that State and the Defendant were both at fault and I don\u2019t think that the speedy trial time should run from the date of the last trial until today for that reason.\nDefense Counsel: If the Court please, I\u2019m going to prepare an order to that effect and send it to the Court for your signature. Then, Judge, as a matter of mechanics, this case is set for the 20th of the month. I need to tell the Court that based upon the Court\u2019s ruling in my previous motion and in this one that I intend to file a Writ of Prohibition with the Supreme Court. I assume that it would not be possible under those circumstances to try it on the 20th.\nThe Court: Well, I would assume that a Writ of Prohibition being the proper remedy, that everything would stop when you filed your notice \u2014 Writ of Prohibition with the Supreme Court.\nDefense Counsel: I just wanted to give the Court notice of the writ.\nThe Court: Just file \u2014 if you\u2019re going to do that, file it before we start calling in the jury so we won\u2019t inconvenience \u2014\nDefense Counsel: If the Court would expeditiously sign the order, I\u2019ll try to get that done this afternoon, and then if the Court would sign it and send it right back to me, then I\u2019ll file a \u2014 file a motion for writ based on that.\nThe Court: Well, you can mail it to me. I mean as long as I get it by, say, Monday, that will be fine.\nDefense Counsel: I hope you get [the notice of the writ] in the morning and then I promise the Court that I will immediately take that step and that way we won\u2019t leave everybody wondering about it.\nThe Court: I don\u2019t think I have any say-so over that. I think if you file for a Writ of Prohibition that stops everything.\nDefense Counsel: Okay.\nArkansas R. Crim. P. 28.3(a) provides, in part, \u201cThe following periods shall be excluded in computing the time for trial. . .the period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . interlocutory appeals.\u201d\nThe State argues that because Rhodes noted in open court that the September 20 trial date be postponed so that he could proceed to file a writ of prohibition, the period between September 20 and the date the writ was filed should be excluded from the speedy trial period under Ark. R. Crim. P. 28.3(a) even though it was not filed of record during the promised time frame.\nRhodes responds that while he did indicate he intended to file a writ of prohibition, the trial court told him to file it before they started to call the jury and never actually granted a continuance. Rhodes further states:\nPetitioner then indicates that the filing would be contingent upon the entry of the Court\u2019s Order denying his Motion to Dismiss. That order was not filed until September 18,1991. By the time Petitioner [Rhodes] received the Order by mail it was not possible to file his Petition for Writ of Prohibition by the September 20 trial date.\nIn reading the record we cannot accept Rhodes\u2019 interpretation of his verbal exchange with the trial court.\nAlthough it is a basic rule of criminal procedure that the primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion and a defendant has no duty to bring himself to trial, Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991), the State met its burden under the facts before us. In Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989), we denied a petition for writ of prohibition in a somewhat analogous situation. In Key, a criminal defendant claimed he had not been given a speedy trial and petitioned for writ of prohibition. Within the one year period, a co-defendant moved that the trial be continued and that the original trial date be used as a date for additional pre-trial motions. During the hearing on this motion, the trial judge asked petitioner\u2019s attorney how she responded to the motion for continuance, and she responded that she had no problems with it. The motion for a continuance was granted, and the trial court announced that the case would be reset for August 1988, still within the speedy trial period. The trial court\u2019s published calendar reflected August 8-12 as trial dates for the county where the case was pending. The trial court failed to make a docket entry or enter an order setting out the continuance as an excluded period as required by Ark. R. Crim. P. Rule 28.3(i), which provides that \u201c[a]ll excluded periods shall be set forth by the court in a written order or docket entry.\u201d\nKey argued that the failure to make a docket notation or enter a timely order was fatal to his prosecution. We stated:\nThe argument ignores our recent case of Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), where we held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Such a holding is based upon the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Accordingly, we hold that the record of the trial judge\u2019s finding that a continuance should be granted, which was agreed to by the petitioner, is sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). That one excluded period is sufficient to deny the petition.\nKey, 300 Ark. at 67, 776 S.W.2d at 821.\nWe have continued to cite our holding in Key with approval. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). See also Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992) (when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i)). Where, as here, an accused is offered a speedy trial but requests that the trial take place at a later date, and the delaying act is memorialized by a record taken at the time it occurred, he cannot complain that his right to speedy trial was denied. Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990).\nBased on this authority, we agree with the State that defense counsel\u2019s statements during the September 11, 1991 hearing had a tolling effect on the speedy trial period. Mr. Honey, Rhodes\u2019 counsel, promised to file a writ of prohibition immediately and did not do so until October 26,1992, over one year later. Rhodes cannot now complain that he was not given a speedy trial when it was the actions of his own counsel that delayed trial.\nTo point out the obvious, our trial judges have demanding dockets and quite often sit at different courthouses within their circuit during any given week. There are several judicial districts which do not furnish either case coordinators or secretaries for use by the trial courts. These are but a few additional reasons why the trial court must be able to rely on counsels\u2019 assurances when made in open court. Likewise, it would be inappropriate to charge the trial court or the State with the responsibility of monitoring an attorney\u2019s representations to the court.\nIn short, an attorney must be held responsible for his word. Rhodes\u2019 attorney\u2019s promise to the trial court that he would immediately take steps to file his petition for writ of prohibition is sufficiently memorialized in the record to satisfy our speedy trial rules.\nWrit denied.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Honey & Honey, P.A., for appellant.", "Winston Bryant, Att\u2019y Gen,, by: Clementine Infante, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "William RHODES v. Hon. Ted CAPEHEART, Circuit Judge\nCR 92-1223\n852 S.W.2d 118\nSupreme Court of Arkansas\nOpinion delivered May 3, 1993\nHoney & Honey, P.A., for appellant.\nWinston Bryant, Att\u2019y Gen,, by: Clementine Infante, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0016-01", "first_page_order": 42, "last_page_order": 49 }