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Nicklie v. State3/21/2001
d to change his plea terminated the running of the 120-day Rule 45 count. Thus, when Nicklie told the trial court on July 13 that he intended to change his plea, he terminated the running of Rule 45. If we simply count the days from March 16 until July 13, only 120 days elapsed. Rule 45 would have restarted if Nicklie had announced that he intended to change his plea (back to not guilty) and go to trial.
Even if we assume that Nicklie did not stop Rule 45 on July 13, he certainly would have stopped it when he moved to dismiss under Rule 45 on July 20. Again, simply counting the days from March 16, only 127 days would have elapsed by July 20. And, as Judge Kauvar pointed out, the record shows that Nicklie moved for numerous continuances, which placed him well within the Rule 45 120-day period.
Nicklie argues that Judge Kauvar erred in excluding continuances that followed the June 11-18 period that he challenges. But Nicklie has not explained why, if Judge Kauvar erred in charging him rather than the state with the first week of the June 11-25 continuance, this would allow him to obtain the subsequent continuances without tolling the rule. The plain language of Rule 45 indicates that a period of delay that results from a continuance that is granted at a defendant's request "shall be excluded in computing the time for trial." Nicklie was bound by his attorney's request for a continuance on Nicklie's behalf. Nicklie's argument is without merit.
We conclude that Judge Kauvar did not err in denying Nicklie's motion to dismiss under Rule 45.
The conviction is AFFIRMED.
Page 1 2 Alaska DUI Attorneys
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