Opinion
Court of Appeals No. A-10068.
April 7, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff and Gregory J. Motyka, Judges, Trial Court No. 3AN-06-12198 Cr.
Henry E. Graper III, Gorton, Logue, and Graper, Anchorage, for the Appellant. Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Richard George Poage was convicted of two offenses under the Anchorage Municipal Code: shoplifting and failure to appear. In this appeal, he argues that he was not brought to trial on one of these charges — the shoplifting charge — within the time allowed by Alaska's speedy trial rule, Criminal Rule 45.
In our previous decision in this case, Poage v. Anchorage, Alaska App. Memorandum Opinion No. 5458 (March 25, 2009), 2009 WL 795229, we remanded this case to the district court for a re-assessment of whether the Rule 45 "clock" was tolled during the two-week period from July 23 to August 6, 2007. If these 14 days are excluded from the Rule 45 count, then Poage was brought to trial within the time limits of the rule. Conversely, if the 14 days are included in the Rule 45 count, then Poage was denied his right to a speedy trial as defined in the rule.
The district court concluded that Poage was not available during this two-week period, and thus Rule 45 was tolled during this time. However, the Municipality concedes that the district court's finding is mistaken, and that the time for bringing Poage to trial under Rule 45 expired before Poage's trial began.
Specifically, the Municipality notes that Poage declared himself ready for trial on July 23rd, and that it was the municipal prosecutor who sought a two-week continuance because of witness unavailability. We have examined the record, and it supports the Municipality's characterization. Accordingly, we accept the Municipality's concession of error.
The judgement of the district court is REVERSED.