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Nicklie v. State3/21/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4360
Robert D. Nicklie contends that Superior Court Judge pro tem Jane F. Kauvar erred in refusing to dismiss a charge of felony driving while intoxicated on the ground that the state violated Criminal Rule 45, the speedy trial rule. We conclude that the state did not violate Rule 45 and affirm Nicklie's conviction.
On March 15, 1999, Robert D. Nicklie was arrested on a complaint that he had committed the felony offense of driving while intoxicated. On June 11, calendar call was held before Superior Court Judge pro tem Jane F. Kauvar. Nicklie requested a week's continuance to try to resolve the case without going to trial. The prosecutor stated that a police officer, apparently an important witness, was unavailable until after June 27. Judge Kauvar scheduled a two-week continuance. Nicklie asked about the status of Rule 45. Judge Kauvar said that he had asked for a one-week continuance. Nicklie replied that he was now ready for trial on the next Monday. Judge Kauvar stated that she would charge one week of the continuance to Nicklie and one week to the state. Judge Kauvar set the next calendar call for June 25.
At the calendar call held on June 25 before Superior Court Judge pro tem Raymond M. Funk, Nicklie requested a two-week continuance. Judge Funk granted the continuance and set calendar call for July 9.
At the calendar call held on July 9 before Judge Kauvar, Nicklie requested a one-week continuance. Judge Kauvar allowed a continuance until July 13.
At the calendar call held on July 13 before Judge Kauvar, Nicklie indicated that he intended to change his plea. A hearing for a formal change of plea was set for July 16.
At the change of plea hearing held before Judge Kauvar on July 16, Nicklie asked for more time to think about his change of plea, and Judge Kauvar granted a continuance until July 20.
At the change of plea hearing held before Judge Kauvar on July 20, Nicklie moved to dismiss on the ground that his right to a speedy trial had been violated. Judge Kauvar denied Nicklie's motion. She found that Nicklie had requested and had been granted several continuances that had tolled Criminal Rule 45.
Ultimately Nicklie entered a no contest plea, preserving his right to appeal the issue of whether his Rule 45 rights had been violated. Judge Kauvar sentenced Nicklie to a three-year term of imprisonment. This appeal followed.
On appeal, Nicklie renews his claim that the state violated Rule 45 by not bringing him to trial within 120 days from the date the charging document was served upon him. In particular, he argues that Judge Kauvar erred in excluding the one-week continuance that he originally requested on June 11, 1999. He argues that he withdrew this request.
It is unnecessary for us to resolve this issue because it is clear that Rule 45 did not run in this case. Assuming that Nicklie was served with a complaint on March 15, 1999, Rule 45 began running the next day, March 16, 1999.
On July 13, Nicklie announced that he intended to change his plea. That he intended to do so is unclear from the transcript, but the remainder of the record resolves the ambiguity. On July 16, Judge Kauvar mentioned to Nicklie that he had said on July 13 that he intended to change his plea and Nicklie did not disagree. On July 20, Judge Kauvar made an express finding that Nicklie had said on July 13 that he intended to change his plea, and Nicklie did not object. The log notes from July 13 also reflect this understanding.
In Morris v. State, this court held that a defendant's informal announcement that he intende
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