Opinion
No. 3426.
May 5, 1978.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Gerald J. Van Hoomissen, J.
Peter J. Aschenbrenner, Aschenbrenner Savell, Fairbanks, for appellant.
Randy M. Olsen, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR, BURKE, and MATTHEWS, JJ.
OPINION
The sole issue in this case is whether there was a violation of the speedy trial requirement of Alaska Criminal Rule 45. We hold there was none and affirm.
On August 10, 1976 a criminal complaint was filed against appellant Dearil Miller and co-defendants William Fisher and Daniel Jeffs charging them with robbery. They were subsequently indicted for that offense and their cases were scheduled to be tried together on November 22nd. Miller's co-defendants moved to dismiss the indictment on October 22nd, and a hearing was scheduled on their motion for November 1st. On November 1st Miller filed a similar motion. All three motions were heard and granted that same day. The three defendants were promptly re-indicted for the same offense on November 3rd. On November 15th counsel for all defendants requested that the November 22nd trial date be vacated so that they would have the opportunity to review the sufficiency of the evidence on which the grand jury had based its second indictment. Their request was granted and trial was scheduled for December 13th. On that day Miller contended that the time prescribed by Alaska Criminal Rule 45 had run. The court ruled otherwise and Miller entered a plea of nolo contendere, reserving his right to appeal.
This has been an approved procedure since Cooksey v. State, 524 P.2d 1251 (Alaska 1974). It has been recently limited by Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska, 1978).
Alaska Criminal Rule 45 requires that one charged with a crime be tried within 120 days from the date of arrest or charge, whichever is first, excluding, inter alia "[t]he period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and his counsel." Miller was brought on for trial 125 days after the time prescribed for his trial by Alaska Criminal Rule 45 began to run; however, through counsel he requested postponement of his trial from November 22nd to December 13th. Therefore, exclusion of this period brings Miller's trial date within the rule.
Alaska Crim.R. 45(d)(2).
Henson v. State, 576 P.2d 1352, Opn. No. 1590 (Alaska, March 31, 1978).
AFFIRMED.