 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Baker v. State4/15/2005
Criminal Rule 45. He argues that it was therefore clear that when his attorney informed the court that she would be unavailable from October 13 to 26 in response to Judge Andrews' order setting his trial for October 12, that he did not agree to a continuance. Baker argues that since he did not consent to a continuance, none of the period of delay which resulted from the continuance should have been excluded from calculating Criminal Rule 45. He therefore argues that he was not brought to trial within the time period authorized by Criminal Rule 45 and his case should therefore be dismissed.
One problem with Baker's argument is that he relies on the language in Jeske v. State, where we state that " nce 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 assumes that Jeske holds that Criminal Rule 45(d)(2) requires the defendant to consent to any continuance requested by defense counsel. But this reading of Jeske overlooks Footnote 1 in that case. In Footnote 1, we specifically declined to resolve whether Criminal Rule 45(d)(2) requires the consent of both the attorney and the defendant to exclude delay caused by a continuance. We stated that we would only "assume, for purposes of deciding this case, that Rule 45(d)(2) requires the defendant's consent to any continuance requested by defense counsel."
And we again conclude that it is unnecessary to decide whether Baker needed to consent to the continuance to resolve the present case. Even if we assume that Baker had to consent to any continuance before the period of delay resulting from the continuance could be excluded under Criminal Rule 45, in Jeske we pointed out that "this court and the Alaska Supreme Court have repeatedly stated that the trial court can rely on a defense attorney's request for a continuance and need not seek a separate, personal consent from the defendant unless the defendant affirmatively objects to the defense attorney's action." Therefore Judge Andrews was authorized to rely on Baker's attorney's notice of unavailability as a representation that the attorney still represented Baker and that the attorney (and Baker) needed a continuance because Baker's attorney would not be available for the trial date which Judge Andrews had set.
Baker attempts to distinguish Jeske by pointing out that in the October 11 hearing he asked for an immediate trial. But Baker had asked for an immediate trial based upon his attorney's representation that she believed that she could get another attorney to represent Baker on extremely short notice. In context, whether she would be able to do this seems highly questionable. She would be asking another attorney in her office, who was unfamiliar with the case, to take over a felony-level trial on one-day's notice. In court, Baker's attorney did not appear to know which attorney might take over the case. She acknowledged that this was an unusual situation and she would have to consult with her supervisors to determine how to proceed. Under these circumstances, it would not be surprising if Baker's attorney was unable to get another attorney to take over Baker's case on short notice and Baker would have to agree to a continuance. Therefore, even if we assume that Judge Andrews was aware of or should have been aware of Baker's objection to the continuance on October 11, she was entitled to rely on Baker's counsel's later request for a continuance. And Baker has not shown that he did anything subsequent to his counsel's filing for a continuance to bring to Judge Andrews' attention that he had any objection to the continuance.
Therefore, Judge Motyka's finding that the t
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.
|
|