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Andre v. Tucson City Court3/13/1990
his full awareness of the impending expiration of the time limits. We do not, however, believe the aggravated conduct of the defense attorney in Techy, is the sine qua non of Rule 8.1(d)'s applicability.
In State v. Tucker, 133 Ariz. 304, 308 n. 5, 651 P.2d 359, 363 n. 5 (1982), the court stated:
We believe Rule 8.1(d) was meant to apply only in cases similar to State ex rel. Berger [ v. Superior Court, 111 Ariz. 335, 529 P.2d 686 (1974)], i.e., when a pretrial motion or hearing causes a trial to occur later than expiration of the original Rule 8.2 time limit. In such cases, there will always be an issue as to whether the delay was an excluded or
nonexcluded period under rule 8.4. The accused may not lie poised until the Rule 8.2 limit runs and then pounce with a claim of denial of a speedy trial because the delay was nonexcluded time. The prosecution and defense both have a duty to request resolution of the Rule 8.4 issue before a speedy trial violation occurs.
Here, but for the exclusion of the state's continuance due to the death in the family of its main witness and the numerous continuances requested by appellant, the trial would have occurred well within the 150 days. Before appellant could complain about the lack of a trial within the 150 days, it was incumbent upon him to timely request a resolution as to whether the delays caused by the various interruptions should have been excluded under Rule 8.4.
The only appropriate sanction in this case is to conclude that the trial set for April 20, 1988, was timely under Hinson.
Affirmed.
Page 1 2 Arizona DUI Attorneys
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