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State v. Swensrud4/9/1991
The State of Arizona (State) petitioned for review of the court of appeals' memorandum decision affirming the trial court's order dismissing defendant's prosecution for driving while under the influence of intoxicating liquor (DUI) because of a violation of the 150-day speedy trial rule found in Rule 8.2(a). We granted review to consider whether the trial court erred in dismissing the prosecution when the defendant did not raise a Rule 8 objection until after the 150-day period had expired. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.
FACTUAL AND PROCEDURAL BACKGROUND
Anthony William Swensrud (defendant) was arrested for DUI on January 25, 1989, and indicted on April 27. A pretrial conference was scheduled for June 7, but was continued to June 28 at defense counsel's request. The reason for defense counsel's request is a disputed issue. At the hearing on the motion to dismiss, defense counsel argued that he was forced to request the continuance because the State had not completed its discovery. The State later obtained a transcript of the pretrial conference, and now argues that the real reason for the request to continue was to facilitate defendant's alcohol-abuse counseling.
On June 28, a trial was scheduled for July 6. At defendant's request, the trial was vacated on July 5 and reset for August 22 with defendant waiving applicable time limits. On August 21, again at defendant's request, the trial was continued from August 22 to September 21 with defendant waiving applicable time limits. On September 11, defendant filed a motion to dismiss for a speedy trial violation. On September 21, again at defendant's request, the trial date was vacated with defendant waiving applicable time limits.
On October 16, the trial court granted defendant's motion to dismiss because "the cause was not tried within 150 days." In a memorandum decision, the court of appeals affirmed the order dismissing the prosecution. The court reasoned that "defense counsel did not waive the 150-day requirement because the defendant would not
have been aware that the trial court was including the June 7 to June 28 time period as nonexcludable time due to the state's dilatory approach to the case until the trial court ruled on the motion to dismiss in October." State v. Swensrud, No. 2 CA-CR 89-0573, slip op. at 3 (Ariz. Ct. App. Aug. 23, 1990) (mem.) (per curiam).
Discussion
In its petition for review, the State argues that the period from June 7 to June 28 should be excluded, and that the hearing on the motion to dismiss therefore occurred on the 140th nonexcludable day. The primary issue at the hearing on the motion to dismiss was whether the period from June 7 to June 28 was excluded. The State also argues that even if this period is included, defense counsel had a duty to inform the trial court that the continuance of the pretrial conference from June 7 to June 28 would cause any trial to be set outside the 150-day limit. See State v. Guerrero, 159 Ariz. 568, 769 P.2d 1014 (1989). Defendant did not respond to the petition for review.
Rule 8.2(a) provides that "every person against whom an indictment . . . is filed shall be tried . . . within 150 days of the arrest . . . except for those excluded periods set forth in Rule 8.4 below." Ariz. R. Crim. P. 8.2(a), 17 A.R.S. In Hinson v. Coulter, we held that
after the police have arrested . . . a drunken driver . . ., the prosecutor must proceed to charge or indict as well as try the
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