Opinion
112,853.
08-14-2015
STATE of Kansas, Appellant, v. Agapito RODRIGUEZ–RIOS, Appellee.
Douglas A. Matthews, county attorney, M. Levi Morris, special prosecutor, and Derek Schmidt, attorney general, for appellant. Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellee.
Douglas A. Matthews, county attorney, M. Levi Morris, special prosecutor, and Derek Schmidt, attorney general, for appellant.
Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellee.
Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
LEBEN, J.
The district court dismissed felony charges against Agapito Rodriguez–Rios after finding that his speedy-trial rights had been violated. Rodriguez–Rios was arraigned on November 7, 2013, for two counts of unlawful possession of a controlled substance. The district court then granted him two continuances—the first from April 4, 2014, to June 25, 2014, and a second starting on June 25, 2014, his second scheduled trial date.
The court, after consultation at least with the prosecutor, set his trial for November 5, 2014. On the defendant's motion, the district court dismissed the charges against him on October 24, 2014, finding that the statutory speedy-trial period had expired.
The State has appealed, arguing that the speedy-trial clock was stopped from the time Rodriguez–Rios requested his first continuance—April 4, 2014—until the case was dismissed on October 24, 2014. But K.S.A.2014 Supp. 22–3402(c) provides that when a defendant requests a continuance with a trial date already in place, the State has a duty to bring the defendant to trial within 90 days of the trial deadline in place at the time the trial is continued. When the district court granted Rodriguez–Rios' second continuance, he had already received an 82–day continuance, and the speedy-trial deadline then in place was July 27, 2014. At that point, under K.S.A.2014 Supp. 22–3402(c), the State had 90 days from July 27, 2014—or until October 25, 2014—to bring Rodriguez–Rios to trial. Though there was still 1 day remaining on the speedy-trial clock when the court granted the defendant's motion to dismiss, the State does not suggest that it could have summoned jurors and begun the trial on the next court day after the October 24 hearing. Because the State failed to bring Rodriguez–Rios to trial within the time limit set by statute, the district court correctly dismissed the charges.
Factual and Procedural Background
In 2013, the State charged Agapito Rodriguez–Rios with two counts of unlawful possession of a controlled substance, severity–level–5 felonies. In October 2014, he filed a motion asking the district court to dismiss his case, arguing that the State had violated his right to a speedy trial. The district court granted the motion, and the State has appealed the dismissal to this court.
Since the State contends that the speedy-trial deadline had not passed when the district court dismissed the case, we must review the relevant dates of the events in this case. Rodriguez–Rios was arraigned in November 7, 2013, and he requested a jury trial on that date. At that time, under K.S.A. 2C14 Supp. 22–3402(b), the speedy-trial deadline was 180 days later—May 6, 2014. In mid-November 2013, the district court set Rodriguez–Rios' trial date for April 8, 2014.
On April 4, 2014, the district court granted Rodriguez–Rios' request to continue the trial from April 8, 2014, until June 25, 2014, so that he would have time to file a motion to suppress. Rodriguez–Rios then filed the motion to suppress on June 3, 2014. At that point, the speedy-trial deadline was July 27, 2014 (adding 82 days to the earlier deadline based on the earlier extension from April 4 to June 25, a period of 82 days).
On June 10, 2014, Rodriguez–Rios requested a continuance of the June 25, 2014, trial date so that the court could consider his motion to suppress before trial: “The defendant has filed a motion to suppress and needs [it] to be heard before the jury trial begins. [He w]ould request [that the motion to suppress] be heard on the first day of the jury trial schedule [June 25, 2014].” The district court heard and denied Rodriguez–Rios' motion to suppress evidence on June 25, 2014.
Because of the way Rodriguez–Rios' attorney submitted his continuance request, things get a bit murky at this point. The attorney submitted a one-page form that served both as a motion and as an order granting the motion, and he left a blank to be filled in for the rescheduled trial date. Rodriguez–Rios' trial attorney later said that the State had been “responsible for the scheduling” and that sometime in September 2014, the county attorney's office had entered November 5 and 6, 2014, on the blank end-date line on the continuance. The court approved the continuance and reset the jury-trial date for November 5, 2014.
On October 10, 2014, Rodriguez–Rios filed a motion asking the district court to dismiss his case, arguing that the State had violated his right to a speedy trial. The district court dismissed the case on October 24, 2014, stating that it was at least partially responsible for setting the November 5, 2014, trial date:
“Well, the motion for continuance I had was filed June 10th. I do not have an independent recollection of how we got to the November 5th and 6th dates. I'm guessing, since I'm sure I wasn't here June 10th, wasn't here until June 25th, but somehow this got filed June 10th. I'm guessing there was a telephone conference and people found a date. The court has some responsibility for getting these dates set. I can't always slough it off on the attorneys, and maybe this is a lesson to the court. But from now on, we'll just get on the phone when we're in the courtroom and we'll set these. I'm granting the motion to dismiss and basically taking the responsibility on myself. I blew it.”
The State has appealed to this court, arguing that no speedy-trial time limit had expired.
Analysis
Kansas criminal defendants have a statutory right to a speedy trial. When they are not in custody, they must be tried within 180 days of arraignment. K.S.A.2014 Supp. 22–3402(b). But that time is tolled, or suspended, if a delay in the case is caused by the defendant or the court:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court....” K.S.A.2014 Supp. 22–3402(b).
In addition, K.S.A.2014 Supp. 22–3402(c) provides that if a scheduled trial is delayed at the defendant's request, it must be rescheduled within 90 days of the existing speedy-trial deadline: “If any trial scheduled within the [180–day] time limitation ... is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.”
Whether the State violated Rodriguez–Rios' statutory right to a speedy trial is a question of law that we review independently, without any required deference to the district court. State v. Sievers, 299 Kan. 305, 307, 323 P.3d 170 (2014).
On appeal, the State argues that the entire delay from June 25, 2014, to November 5, 2014, should be attributed to Rodriguez–Rios. Rodriguez–Rios agrees that the speedy-trial period was tolled from April 4, 2014, until June 25, 2014, based on his first request for a continuance. But he does not agree that it was also tolled from June 25, 2014, until the trial date written into the second continuance—November 5, 2014.
Rodriguez–Rios contends that when the district granted the first continuance, the trial deadline became July 27, 2014. He says that when he requested the second continuance, under K.S.A.2014 Supp. 22–3402(c) —which says that a trial delayed at the defendant's request must be rescheduled within 90 days of the speedy-trial deadline in place at the time—the new speedy-trial deadline became October 24, 2014, which he contends was 90 days after July 27, 2014.
Rodriguez–Rios has made a 1–day error in his calculation. K.S.A.2014 Supp. 60–206(a) provides that when computing a time period stated in days, we must “[e]xclude the day of the event that triggers the period.” This new 90–day period—triggered from “the original trial deadline”—began on July 27, 2014, so that day is excluded. This result makes sense because Rodriguez–Rios could properly have been tried on July 27, 2014. Thus, the 90–day period from July 27, 2014, ran through October 25, 2014 (and, since that was a Saturday, actually ran until the next day of court, October 27, 2014). We apply K.S.A.2014 Supp. 60–206(a), even though it is part of the Kansas Rules of Civil Procedure, because it provides that its rules “apply in computing any time period specified ... in any statute ... that does not specify a method of computing time.” Its provisions have previously been applied when computing speedy-trial deadlines in criminal cases. See State v. White, 234 Kan. 340, 345, 673 P.2d 1106 (1983) ; State v. Burns, 44 Kan.App.2d 289, 294, 238 P.3d 288 (2010).
Except for the 1–day error in Rodriguez–Rios' mathematical calculations, he is correct. The fact that he requested the continuance is not determinative in this case because our Supreme Court has stated that K.S.A.2014 Supp. 22–3402(c) places a duty on the State to bring the defendant to trial within 90 days of the trial deadline in place when the defendant requests a continuance. K.S.A.2014 Supp. 22–3402(c) ; see State v. Brown, 283 Kan. 658, 667, 157 P.3d 624 (2007) (stating that a prior version of K.S.A.2014 Supp. 22–3402 [c] placed a duty on the State to reset the trial date within a specific time period); State v. Lawrence, 38 Kan.App.2d 473, 482, 167 P.3d 794 (2007) (holding that the phrase “original trial deadline” in what is now subsection [c] of the speedy-trial statute refers to the trial deadline in place at the time the trial is continued), rev. denied 286 Kan. 1183 (2008); State v. Douglas, No. 99,651, 2009 WL 596548, at *6 (Kan.App.2009) (unpublished opinion) (same). We note that the State makes no argument on appeal that K.S.A.2014 Supp. 22–3402(c) is a directory rule and not a mandatory rule, see Lawrence, 38 Kan.App.2d at 483, and State v. Pennington, 43 Kan.App.2d 446, 454–55, 227 P.3d 978, rev. denied 290 Kan. 1101 (2010). Accordingly, based on the language of K.S.A.2014 Supp. 22–3402(c), Brown, and the arguments presented, we conclude that the State had a duty to bring Rodriguez–Rios to trial within 90 days of the July 27, 2014, trial deadline in place at the time of the second continuance—by October 25, 2014. As we have already noted, although the district court hearing and its dismissal order came on October 24, the State has not suggested that it could have summoned jurors and started trial on the next day of court after that hearing. Because the State failed to meet its obligation, Rodriguez–Rios' speedy-trial rights were violated.
Rodriguez–Rios also discusses in his appellate brief an argument the State made in the district court—that Rodriguez–Rios had acquiesced to the continuance. Although the State made that argument in the district court, it has not briefed it on appeal. Accordingly, the State has waived that issue. State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014). In any event, mere acceptance of a delayed trial date is not acquiescence to a speedy-trial violation. State v. Adams, 283 Kan. 365, 370, 153 P.3d 512 (2007) ; State v. Hoffman, No. 98,045, 2008 WL 5401319, at *3 (Kan.App.2008) (unpublished opinion). Only the State is authorized to bring a criminal prosecution, so it is the State's obligation to ensure that a defendant is provided a speedy trial within the statutory time limits. Sievers, 299 Kan. at 307. The defendant does not have an obligation to take action to protect his or her right to a speedy trial. 299 Kan. at 307–08.
We affirm the district court's judgment.