 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Baker v. State4/15/2005
ated that he wanted to go to trial immediately.
Baker's attorney told the court that she had explained to Baker that if he wanted to have another attorney represent him on short notice, he could go to trial the next day. Judge Finn explained to Baker that the State was ready for trial and he was not. She explained that he could start his trial the next day with a new attorney who was unfamiliar with his case, or he could move for a continuance - which would toll Rule 45 until December 6. Judge Finn told Baker he should discuss his options with his attorney.
After discussing the matter with his attorney, Baker stated that he was not willing to agree to waive any additional time under Criminal Rule 45. He asked to go to trial immediately. After some discussion, Judge Finn stated that the parties could pick a jury on October 15 (a Friday) and present evidence on October 19 and 20. She entered an order setting trial for October 15. Baker's attorney explained that she had never been in this position before and would talk to the supervising attorneys in her office about how to handle Baker's case. She explained that having a client go to trial on such short notice with a different attorney was not a normal procedure.
Apparently that same afternoon, presiding Superior Court Judge Elaine M. Andrews issued an order setting trial in Baker's case for October 12, 1999. The parties received notice on October 11 by telephone. The next day, Baker's attorney filed a notice with the court that she would be unavailable from October 13, 1999 through October 26, 1999. The State responded with the dates when its witnesses would be unavailable. Judge Andrews recalculated Criminal Rule 45, and set trial for December 7, 1999. Baker, now represented by a new attorney, filed a motion to dismiss under Criminal Rule 45 on that date. Baker waived time from that date to allow the motion to be decided and to allow the matter to be reset for trial if necessary. Judge Motyka denied Baker's motion to dismiss and Baker was convicted in a jury trial.
In rejecting Baker's Criminal Rule 45 motion to dismiss, Judge Motyka found that Baker's attorney had moved for a continuance from October 13 through October 26. He found that because the attorney had moved for this continuance, the State was put in a position of having its witnesses unavailable through December 5, 1999. He found that because of Baker's counsel's unavailability that Rule 45 was tolled from October 13 through December 5, 1999. Baker's contention on appeal is that Judge Motyka erred in making this finding.
To understand Baker's argument, we first turn to the wording of Criminal Rule 45(d)(2) which excludes from Criminal Rule 45 " he period of delay resulting from
... continuance granted at the timely request or with the consent of the defendant and the defendant's counsel." Baker reads the rule to mean that his attorney could not consent to a continuance which would exclude time under Criminal Rule 45 unless Baker also consented to the continuance. Baker relies on our decision in State v. Jeske. In Jeske, we stated:
When defense counsel has requested or consented to a continuance, a judge setting the date for the defendant's trial is entitled to rely upon the fact that [Criminal Rule 45] is tolled during that continuance, at least until the judge is affirmatively apprised of the defendant's objection to the continuance. Once it is clear that the defendant has not consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to restart the Rule 45 clock.
Baker argues that in the October 11 hearing he made it clear that he would not agree to a continuance under
Page 1 2 3 4 5 6 7 8 9 10 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|