 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Zangerl v. State3/13/2003
o the trial court's request on June 26 that briefs be submitted on July 11. The facts indicate that in Ferguson, supra, the trial court conducted a suppression hearing, where it addressed the merits of the motion, prior to the request for briefs. The majority indicates that the court addressed the "status" of the motions in the pretrial hearing held on June 26; however, the "status" hearing did not include a hearing on the merits of Zangerl's motions.
The majority states that "we have no evidence before us that briefs were ever filed in this case." Although the actual briefs are not included in the record, we do have evidence before us that briefs were filed. On April 6, 2001, prior to Zangerl's trial on the merits, defense counsel acknowledged that he had filed a brief, stating:
Defense Counsel: . . . riefs or authorities were directed to be supplied and in all being perfectly candid with the Court, I do not know what date I supplied those - my authorities to the Court. Unfortunately, my transmittal letter to the Court which was prepared by myself and not by my secretary who does much better work, did not have a date.
Later, defense counsel argued that the continuance noted on the docket sheet on October 19, which stated that the case was reset at the defendant's request, could not be charged against Zangerl because there was no record of a request by the defense. Defense counsel stated:
Defense Counsel: There is no Motion, there is no letter that was charged to the defense I guess administratively by the Court because it's apparently attributable to the fact that Your Honor did not have my brief.
It is clear from the record that Zangerl did submit a brief. It is equally clear from the record that Zangerl's attorney knew that he had been directed by the trial judge to submit a brief and that the trial judge was waiting on the brief before he decided the motion.
The majority is correct in stating that the issue is "when was the case taken under advisement." The thirty-day rule in Rule 28.3 is not triggered until the motion is heard by the trial court and is submitted to the trial court for decision. In this case, there was neither a hearing on the merits of Zangerl's motion nor was the case submitted to the trial court for decision prior to October 19, 2000. At the June 26, 2000, pretrial conference, the trial court requested briefs. It is clear that Zangerl's motions were not submitted to the trial court for decision until the briefs were filed. A trial court cannot take a motion under advisement until the motion has been submitted for decision to the trial court. The docket entry on October 19, 2000, which stated that Zangerl's brief had not been received, leaves no doubt that the trial court did not consider Zangerl's motions submitted for decision as of that date. The trial could not proceed until Zangerl's motions were decided.
The period from August 10, 2000, to October 19, 2000, a total of 70 days, should be excluded. When the period of 70 days is subtracted from the majority's total of 432 days, the number of days which can be excluded is 362 days, an amount which is within the speedy-trial period.
The trial court's denial of Zangerl's motion to dismiss should be affirmed.
Glaze and Corbin, JJ., join this dissent.
Page 1 2 3 4 5 6 7 Arkansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|