Opinion
Delivered July 13, 1987
The following changes in the Arkansas Rules of Criminal Procedure are hereby adopted, effective October 1, 1987. These changes are proposed by the Supreme Court Committee on the Arkansas Rules of Criminal Procedure which has rendered faithful service to this Court and to the bar of Arkansas in considering these and other changes in the Rules of Criminal Procedure. The Court expresses its gratitude to the Chair, Judge William Enfield, Reporters Rafael Guzman, recently succeeded by Samuel A. Perroni, and to the members of the Committee: H. William Allen, Robert Edwards, John A. Fogleman, Ray Hartenstein, Judge Philip B. Purifoy, James A. Ross, Jr., Stevan E. Vowell and Robert Hays Williams.
Rule 22.3 (b), A.R. Cr.P.
Rule 22.3 (b) is hereby amended to read as follows:
(b) The Court, on application of the prosecuting attorney, or on application of the defendant other than under Subsection (a), shall grant a severance of defendants:
(i) if before trial it is deemed necessary to protect a defendant's right to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of one (1) or more defendants; or
(ii) if before trial the court determines that one (1) or more of the defendants will not receive a fair trial because of potentially prejudicial publicity against another defendant; or
(iii) if during trial, upon consent of the defendant to be severed, it is deemed necessary to achieve a fair determination of the guilt or innocence of one (1) or more defendants.
The Committee's comment:
The Committee recommends a change in the Arkansas Rules of Criminal Procedure relating to severance of defendants. Specifically, the Committee recommends the adoption of a new provision in Rule 22.3 (b) that would assure a defendant severance from co-defendants in those situations where pre-trial publicity against the co-defendant threatens the defendant's right to a fair trial.
The Committee recognized the current language of Rule 22.3 (b) is probably broad enough to cover this situation. Nevertheless we believe the new provision, recommended by the American Bar Association Standards of Criminal Justice, and the Arkansas Bar Foundation's Committee on Free Press-Fair Trial, may make the trial judge more sensitive to the potential problem.
Rule 28, A.R.Cr.P.
Rule 28.1 is hereby amended to read as follows:
LIMITATIONS AND CONSEQUENCES.
(a) Any defendant charged with an offense in circuit court and incarcerated in a city or county jail in this state pending trial shall be released on his own recognizance if not brought to trial within nine (9) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(b) Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time. provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
(c) Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
The Committee's comment:
The Committee recommends a change in Arkansas Speedy Trial rules. The time limitation in Rule 28.1 (c) should be changed to twelve (12) months.
Determining an appropriate time limitation for the speedy trial rules was quite difficult for the Committee. We were cognizant of the specific problems faced by some prosecutors due to the size of the district, terms of court, prosecutorial staff, population, etc. Nevertheless the Committee concluded the current time limitation of 18 months in Rule 28.1 (c) was excessive in light of the obvious benefits to society of a speedy disposition of a criminal case.
It is always possible that unusual circumstances will arise that will make it difficult or impossible for the prosecutor to meet the time limitation. Rule 28.3 (h) which excludes from the basic time limitations all periods of delay "for good cause" should cover such circumstances.
Rule 24.3, A.R.Cr.P.
Rule 24.3 is hereby amended to read as follows:
PLEADING BY DEFENDANT.
(a) A plea of guilty or nolo contendere shall be received only from the defendant himself in open court, except that counsel may enter a plea of guilty on behalf of a defendant in misdemeanor cases where only a fine is imposed by the court. If the defendant is a corporation the plea may be received from counsel or an authorized corporate officer.
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional pica of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
(c) A defendant may plead nolo contendere only with the consent of the court. The court shall not accept a plea of nolo contendere unless it is satisfied, after due consideration of the views of the parties, that the interest of the public in the effective administration of justice would thereby be served.
(d) No plea of guilty or nolo contendere shall be accepted by any court unless the prosecuting attorney of the governmental unit in which the offense occurred is given opportunity to be heard at the time the plea is tendered.
The Committee's Comment:
Under the current rules there can be no appeal following a plea of guilty. Thus a defendant who wants to appeal an adverse decision on a motion to suppress must plead not guilty, stand trial and then appeal. With the large number of drug offenses in recent years, the motion to suppress issue is often the critical or only issue in the criminal case. The Committee concluded the current procedure often leads to unnecessary criminal trials.
The Committee's proposal to allow a defendant to enter a conditional guilty plea is patterned after Rule 11 of the Federal Rules of Criminal Procedure. The requirement that the defendant obtain the consent of the court and the prosecutor should prevent an abuse of the procedure and limit its use to those cases where judge, prosecutor, and defendant determine it would be desirable. The conditional guilty plea procedure appears to work well in the federal courts.
To implement the recommended procedure it will be necessary to amend Rule 24.3 Pleading by Defendant and Rule 36.1 Right of Appeal.
Rule 36.1, A.R.Cr.P.
Rule 36.1 is hereby amended to read as follows:
RIGHT OF APPEAL.
Any person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas. An appeal may be taken jointly by co-defendants or by any defendant jointly charged and convicted with another defendant, and only one (1) appeal need be taken where a defendant has been found guilty of one (1) or more charges at a single trial. Except as provided by Rule 24.3 (b) there shall be no appeal from a plea of guilty or nolo contendere.
IT IS SO ORDERED.