Review of the judgment of the Court of Appeals in 34 Kan. App. 2d 746, 124 P.3d 1035 (2005). Appeal from Washington district court; THOMAS M. TUGGLE, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
1. Under K.S.A. 22-3402(1), the computation of the time chargeable to a defendant where the defendant has obtained a continuance of a trial date is discussed.
2. Under the facts of this case, the delay from the date the judge granted defendant's motion for continuance of trial until the rescheduled trial date was chargeable against the defendant for speedy trial purposes pursuant to K.S.A. 22-3402(1).
The opinion of the court was delivered by: McFARLAND, C.J.
Michael J. Brown was convicted by a jury of involuntary manslaughter while operating a vehicle under the influence of alcohol (K.S.A. 2006 Supp. 21-3442) and driving under the influence of alcohol (K.S.A. 2006 Supp. 8-1567[a]). He appealed his convictions and sentences to the Kansas Court of Appeals, raising several issues, including a claim that the trial court erred in denying his motion for discharge because he was not brought to trial within the applicable statutory speedy trial period.
The Kansas Court of Appeals affirmed Brown's conviction for involuntary manslaughter while driving under the influence of alcohol, but vacated the sentence due to error in calculating criminal history and remanded for resentencing. The panel reversed the conviction of driving under the influence of alcohol on the ground it was multiplicitous. State v. Brown, 34 Kan. App. 2d 746, 124 P.3d 1035 (2005). One member of the panel dissented on the speedy trial issue. We granted Brown's petition for review on the single issue of whether Brown's statutory right to speedy trial was violated.
The issue before us requires that we determine whether speedy trial delay due to the defendant's continuance of the trial date is measured from the date the motion for continuance was granted or from the scheduled trial date. We hold that the period of delay to be assessed to the defendant began on the date the continuance was granted.
On April 15, 2003, in Washington County, Michael Brown was operating a motor vehicle in which his wife and son were passengers. Brown made a wide turn into the westbound lane of Highway 36 heading east. The Brown vehicle collided with another vehicle driving westbound. Brown's wife, Ruth, died the following day as a result of injuries sustained in the collision. Brown's blood was tested and was found to contain a blood alcohol level of 0.10 grams of alcohol per 100 milliliters of blood. More details are set forth in State v. Brown, 34 Kan. App. 2d 746.
FACTS RELEVANT TO SPEEDY TRIAL
Brown was arraigned on June 4, 2003, and was taken into custody on that date. The court set the case for jury trial to begin August 20, 2003. On July 30, 2003, Brown's attorney filed a motion to continue the trial in order to retain an expert witness. On August 1, 2003, the trial court granted the motion and reset the trial to October 27, 2003. The journal entry granting the motion stated: "The time is assessed to the defendant."
On October 27, 2003, the county attorney was ill. This caused the trial court to vacate the trial date and set the case for a trial rescheduling conference to be held November 6, 2003. As a result of this conference, the trial was reset for November 20, 2003.
On November 13, 2003, Brown filed a motion for discharge pursuant to K.S.A. 22-3402 alleging that the statutory 90-day period expired on November 9, 2003. Brown contended that the delay caused by his continuance commenced to run on August 20, 2003, the original trial date. The State countered that the delay attributable to Brown's continuance should be computed from August 1, 2003, the date the continuance was granted. If the 19 days between the date the motion was granted and the originally scheduled trial date are assessed to the defendant, then only 82 days elapsed between arraignment and trial. If the 19 days are assessed to the State, then 101 days had elapsed.
For convenience, the following chart shows the relevant chronological events and the period in dispute:
DATE(S) EVENT NO. OF DAYS CHARGEABLE TO: STATE DEF. DISPUTED
1. 6/4/03 to 8/1/03 Arraignment; case set for jury trial 8/20/03. 57 57 0 No
2. 8/1/03 to 8/20/03 Defendant's motion for continuance to retain expert granted; jury trial reset for 10/27/03. 19 ? ? Yes
3. 8/20/03 to 10/27/03 Period of time between original trial date and rescheduled trial date. 68 0 68 No
4. 10/27/03 to 11/20/03 Trial date vacated due to county attorney's illness; trial rescheduled for 11/20/03. Trial commenced 11/20/03. 25 25 0 No TOTALS 169 82 68 19
The trial court assessed the 19 days in dispute to Brown, holding: "Because the continuance was sought by defendant it seems logical that the time chargeable to defendant should be from the time his motion was granted (August 1, 2003) to the continued trial date (October 27, 2003)."
The Court of Appeals affirmed the district court's denial of the motion for discharge, with two members of the panel holding that the delay from the date the continuance was granted until the rescheduled trial date was chargeable against the defendant for speedy trial purposes pursuant to K.S.A. 22-3402(1). State v. Brown, 34 Kan. App. 2d 746, Syl. ¶ 2. The dissent ...