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State v. Newman4/19/2004
After three days of trial before a jury, the district court declared a mistrial on the basis of prosecutorial misconduct and dismissed with prejudice the charges against Robert Newman on the ground that the six-month deadline for speedy trial had passed and a second trial on re-filed charges would further exceed the deadline. The State filed a petition for review challenging the order, which this Court granted conditioned upon the parties briefing the question of the appropriateness of the State's challenge by means of a petition for review. We hold that the petition for review is appropriate under these narrow circumstances and reverse the dismissal with prejudice, holding that the speedy trial time period ceased to run when the court granted a mistrial and, therefore, the district court abused its discretion in dismissing the case with prejudice.
ISSUES
We address the following issues:
1. Whether under these unusual circumstances the State may utilize a petition for review to challenge the district court's order of dismissal with prejudice.
2. Whether the district court erred in dismissing the case with prejudice.
FACTS
Mr. Newman was charged on August 2, 2002, with aggravated assault and battery in violation of Wyo. Stat. Ann. ยง 6-2-502(a)(ii) (Michie 1997). After vacating several trial settings, the district court scheduled the trial to begin February 3, 2003. On January 30, 2003, at a re-arraignment hearing, the prosecution advised the district court the State was not ready to proceed with trial because it was waiting on a report from the state crime lab. When asked by the court what the defense's position was on another continuance of the trial date, counsel for Mr. Newman responded:
e would like to go to trial as soon as possible.... y client would like to proceed. I guess he would be willing to waive a speedy trial if the Court does continue this. But I will tell you, Your Honor, that he would like to proceed with this as soon as possible.
The district court vacated the February 3, 2003, trial date and the trial was re-set for March 3, 2003. On February 25, 2003, Mr. Newman filed a motion to dismiss on the basis that the speedy trial time had passed. The district court held a hearing on the motion on February 27, 2003. At the close of the hearing, the district court denied the motion and the case proceeded to trial on March 3, 2003.
On the morning of the third day of trial, March 5, 2003, Mr. Newman appeared in the courtroom wearing his military uniform. In chambers, prior to trial, the prosecution raised the issue of Mr. Newman appearing in uniform, asserting that he represented to the court in his motion to dismiss that he had been demoted to errand boy and thus he should not be allowed to portray himself before the jury as a member of the United States Air Force. The district court pressed on with the trial, stating that Mr. Newman was entitled to wear his uniform. After lunch on the same day, the prosecution again raised the issue of the uniform in chambers and claimed that Mr. Newman was violating military code by appearing in court in his uniform. The district court again declined to become involved in the issue, stating that whether or not Mr. Newman was entitled to wear his uniform was an issue for the military, not the state district court.
The following day, March 6, 2003, defense counsel and the prosecution again appeared in chambers at which time defense counsel informed the district court that during the morning recess the previous day outside the presence of the jury the prosecution questioned Mr. Newman directly about why he was wearing his unif
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