Opinion
Opinion delivered June 16, 1997
The Arkansas Supreme Court Committee on Criminal Practice has recommended amendments to Rule 28.3 (b) and (i) of the Rules of Criminal Procedure. As explained in the accompanying Reporter's Notes, these changes were proposed to address recurrent problems arising in the application of the speedy-trial rule. We express our gratitude to the members of the Criminal Practice Committee for their work on this matter.
We publish the proposed amendment to Rule 28.3, subsections (b) and (i) of the Rules of Criminal Procedure and the accompanying Reporter's Notes for comment by the bench and bar for a period up to and including September 1, 1997.
RULE 28.3. EXCLUDED PERIODS.
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(b) The period of delay resulting from a continuance attributable to congestion of the trial docket if in a written order or docket entry at the time the continuance is granted: (1) the court explains with particularity the reasons the trial docket does not permit trial on the date originally scheduled; (2) the court determines that the delay will not prejudice the defendant; and (3) the court schedules the trial on the next available date permitted by the trial docket.
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(i) All excluded periods shall be determined by the court in a written order or docket entry, but it shall not be necessary for the trial court to make the determination until the defendant has moved for dismissal pursuant to Rule 28.1. The number of days of the excluded period or periods shall be added to the number of months applicable to the defendant as set forth in Rule 28.1(a), (b) and (c) to determine the limitations and consequences applicable to the defendant. Reporter's Notes to 1997 Amendment: Subsections (b) and (i) have been amended to address recurrent problems arising in cases. E.g., Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991).
Subsection (b) was amended to make more practical a continuance granted because of congestion of the trial docket. The three-pronged finding was substituted for the previous standard which required a finding of "exceptional circumstances." This requirement of the entry of a contemporaneous written order explaining the reasons for the continuance, finding that the defendant is not prejudiced, and scheduling a new trial date is in addition to the finding required by subsection (i) as to the periods to be excluded. Typically, the period to be excluded under subsection (b) will be from the date on which the trial was scheduled as specified in (b)(1) to the rescheduled date as specified in (b)(3).
Subsection (i) was amended to allow the trial court to determine the excluded periods when the defendant has moved for dismissal pursuant to Rule 28.1 rather than at an earlier date although the judge is still free to do so earlier. The finding required by this subsection is a determination of the excluded periods.