Appeal from Shawnee District Court; NANCY E. PARRISH, judge.
1. When a defendant makes an untimely jury-trial demand and a scheduled trial to a judge is reset for jury trial, the time from the granting of the jury demand until the rescheduled trial date is charged against the defendant so long as the new trial date is scheduled to begin within a reasonable time.
2. The 90-day period for rescheduling a trial on a defense continuance under K.S.A. 2006 Supp. 22-3402(3) is not added onto the otherwise applicable 90- or 180-day time limit under K.S.A. 2006 Supp. 22-3402 subsections (1) and (2).
3. The term "original trial deadline" in K.S.A. 2006 Supp. 22-3402(3) means the speedy-trial deadline in place at the time a trial setting is continued at the defendant's request.
The opinion of the court was delivered by: Leben, J.
Before MALONE, P.J., BUSER and LEBEN, JJ.
The district court dismissed criminal charges against Kayle Lawrence because the trial setting was 313 days after arraignment and thus violated a statutory 180-day deadline. But delays that are "as a result of the application or fault of the defendant" do not count against the deadline under the statute. See K.S.A. 2006 Supp. 22-3402(2). We must decide whether enough of those 313 days do not count so that the 180-day deadline had not been exceeded. The largest single delay, 131 days, was caused by the defendant waiting to ask for a jury trial until about a week before a non-jury trial was set to begin, causing the trial to be postponed. On our review, those 131 days and 75 others are attributable to the application or fault of the defendant under the speedy-trial statute and not counted against the deadline. Because only 107 of the allowable 180 days had been used and no other provision of the speedy-trial statute was violated, we find that the case should not have been dismissed.
Most of the Pretrial Delays Here Were Requested by or Caused by the Defense.
Lawrence was charged with misdemeanor driving under the influence of alcohol and another traffic infraction. He was arraigned on February 9, 2005; a court trial was set for March 29, 2005. Before that trial could proceed, Lawrence and his attorney had differences and the attorney moved to withdraw. That motion was granted on March 25, 2005, and the initial trial date was removed.
Lawrence made one appearance without counsel at a scheduling docket on April 13, 2005, and ultimately got a new attorney on board on May 10, 2005. His new attorney said that he needed about 30 days to review the case and asked for it to be continued. The court agreed to the continuance and--apparently unaware that an arraignment had already been held--set an arraignment for June 8, 2005.
At the June 8 hearing, the defendant waived arraignment, and the case was set for trial to the court on July 20. A week before trial, however, the defendant filed a jury-trial demand. Upon the filing of that demand, the July 20 trial setting was removed and a pretrial hearing was set for August 3. On July 29, 2005, defense counsel requested a 2-week continuance of the August 3 hearing. The defense motion for continuance was granted; the court set a new hearing date of September 14.
At the September 14 hearing, the case was set for jury trial on November 21, 2005. When that date arrived, however, the State asked for a continuance. The State's motion was granted and a new trial date of December 19, 2005, was set. On that date, the defendant asked to postpone the trial date so that he could present a written motion to dismiss on speedy-trial grounds. The court agreed to do so, and the defendant explicitly waived any time required to consider the motion forward from speedy-trial consideration.
For the convenience of the reader, the dates of key events and the number of days transpiring between each event are listed in the following table. Date Event No. Days February 9, 2005 Defendant arraigned. March 25, 2005 Defense counsel's motion to withdraw granted. 44 March 29, 2005 Original trial date (postponed when defense counsel withdrew). 4 April 13, 2005 Defendant appears for hearing but does not yet have new attorney. 15 May 10, 2005 New defense attorney enters appearance and asks for continuance. 27 June 8, 2005 Hearing held. Trial set to judge for July 20. 29 July 13, 2005 Defendant files jury demand. July 20 trial date removed and pretrial hearing set for August 3. 35 July 20, 2005 Second trial setting (postponed when jury demand filed). 7 July 29, 2005 Defense requests 2-week continuance; court resets pretrial hearing for September 14. 9 August 3, 2005 Previously scheduled pretrial hearing (continued at defense request). 5 August 17, 2005 End of 2-week period defense requested for ...