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Lee v. State2/12/2003
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 4654
Shirley P. Lee was arrested on September 28, 2001, for driving while intoxicated and refusal to submit to a chemical test. Although the record is unclear, she apparently appeared before the magistrate that day and was released on her own recognizance. Lee appeared in court on October 4, 2001, where she was served with the criminal complaint and arraigned. On January 31, 2002, she entered a guilty plea to the refusal charge, preserving her claim that her right to a speedy trial under Alaska Criminal Rule 45 had been violated. Because Criminal Rule 45 was not violated, we affirm her conviction.
In her opening brief, Lee claims that her trial date violated Criminal Rule 45 because she entered her plea more than 120 days after she was arrested and first appeared in court. But in her reply brief, Lee acknowledges that based on our decision in Bailey v. Anchorage, Criminal Rule 45 had not run when she pleaded to the refusal charge. Lee asks us to revisit Bailey and to change the time that the Criminal Rule 45 calculation begins. That is, she argues in her reply brief that the date she appeared before the magistrate, not the date she was served with the criminal complaint, should trigger the Rule 45 trial clock.
Under Criminal Rule 45(b), unless the time is tolled, a defendant " ... shall be tried within 120 days from the time set forth in paragraph (c) of this rule." But as we recognized in Bailey, Criminal Rule 45(c)(1) provides that the "time for trial shall begin running, without demand by the defendant, from the date the charging document is served upon the defendant." Here, Lee was served with the criminal complaint when she appeared in court on October 4, 2001. Therefore, even if no intervening period tolled Criminal Rule 45, the State had until February 1, 2002, to start Lee's trial. Lee entered her plea on January 31, 2002, the day before the 120-day period ran.
Lee concedes that under Bailey, she was brought to trial within 120 days of when she was served with the criminal complaint. But she argues that we should distinguish her case from Bailey and hold that Criminal Rule 45 began running when she appeared before the magistrate. Lee, however, raises this argument for the first time in her reply brief, and we do not consider arguments first raised in a reply brief. Even so, in Bailey we rejected the very argument Lee advances here; we held that Rule 45(c)(1) made the receipt of a charging document the event that started the 120-day period in Criminal Rule 45, not appearance before a magistrate and receipt of a bail order. Lee's argument, like Bailey's, is "premised on an interpretation of Rule 45(c)(1) that is inconsistent with the legislative history of the [rule's] 1993 amendment."
Even had Lee raised her argument in her opening brief, she advances no reason that would justify our reversing the decision in Bailey; we conclude that Bailey disposes of Lee's claim. In Lee's case, Criminal Rule 45 was not violated.
Accordingly, Lee's conviction is AFFIRMED.
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