 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ornquist v. State6/23/1999
4067 NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the District Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge.
This is a peremptory challenge appeal brought by Dwight D. Ornquist under Alaska Appellate Rule 216(a)(2). Ornquist maintains that Superior Court Judge Beverly W. Cutler should have allowed Ornquist to peremptorily challenge her on January 12, 1999. We affirm Judge Cutler's denial of the peremptory challenge because Ornquist participated in proceedings in front of Judge Cutler after he knew that she was assigned to his case.
On September 8, 1998, Ornquist was charged with felony driving while intoxicated and felony refusal to submit to a chemical test. After some preliminary proceedings in district court, Ornquist's case was calendared for a change of plea in superior court before Judge Cutler. As recited in Judge Cutler's decision denying Ornquist's peremptory challenge, Ornquist was given oral notice (in court) of Judge Cutler's assignment to his case.
Ornquist's change of plea in superior court was first scheduled for November 6, 1998, but the hearing was continued a number of times at Ornquist's attorney's request. The written notices issued by the court as a result of these defense-requested continuances state that Ornquist's case was assigned to Judge Cutler.
On January 6, 1999, the parties again assembled in court for what was to have been a change of plea, but Ornquist announced that he would not change his plea. Instead, he changed his attorney. On January 12, 1999, Ornquist's new attorney filed a peremptory challenge of Judge Cutler. Judge Cutler denied the challenge, and this appeal followed.
Under Alaska Criminal Rule 25(d), a defendant generally has five days from the date of a Judge's assignment to peremptorily challenge the Judge. Ornquist contends that his January 12th peremptory challenge of Judge Cutler was timely or, if untimely, that the time limit for filing the challenge should have been relaxed under Criminal Rule 53. But Ornquist's arguments are all premised on the assertion that he did not know that Judge Cutler was assigned to his case until January 6, 1999. Judge Cutler found that Ornquist was aware of her assignment in November 1998.
In his brief to this court, Ornquist neither discusses nor attacks Judge Cutler's finding. Because Ornquist fails to address Judge Cutler's finding, he has failed to show that this finding is clearly erroneous. The Judge's finding therefore governs our consideration of Ornquist's appeal.
Based on Judge Cutler's finding that Ornquist was aware of her assignment to the case in November 1998, we affirm Judge Cutler's ruling that Ornquist waived his right of peremptory challenge. The judgment of the superior court is AFFIRMED.
Page 1 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|