Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
The record is examined and it is determined that the defendant was not brought to trial within 180 days after his arraignment. As a result, we determine that he should be discharged from further liability for the crimes charged as provided by K.S.A. 22-3402.
The opinion of the court was delivered by: Green, J.
Before HILL, P.J., GREEN and STANDRIDGE, JJ.
Christopher M. Gore appeals from a jury conviction of aggravated sodomy. On appeal, Gore contends that the trial court erred in denying his motion to dismiss the complaint or information on the ground that the 180-day speedy trial rule was violated. We agree. Accordingly, we reverse.
Christopher and Shannon Gore married in 1995 and have two daughters: H.G., born in 2000, and S.G., born in 2003. The Gores' divorce became final on April 26, 2004, after which Shannon and Christopher (hereafter Gore) shared joint legal custody and Gore regularly exercised his visitation rights.
In March 2005, the State charged Gore with alternative counts of aggravated sodomy and aggravated indecent liberties with a child against H.G. After several continuances, the case was set for a jury trial to begin June 5, 2006.
Three weeks before trial, Gore moved to dismiss the charges, alleging his statutory right to be brought to trial within 180 days of his May 26, 2005, arraignment had been violated because the State had received trial continuances totaling 207 days. At a hearing on the motion, the State objected only to Gore's attribution to it of a 56-day continuance from November 14, 2005, to January 9, 2006. If this period is chargeable to the State, the State violated Gore's right to a speedy trial.
In support of his claim, Gore cited his counsel's file notes and a printout of the trial court's hearing docket downloaded from accesskansas.org, which he attached to his motion--both of which indicated the State requested that continuance. On the other hand, the trial court's "Full Court" computerized docketing system (Full Court) indicated that Gore requested the continuance. Because no record was made when Judge Gregory Waller granted the November 14 continuance, Judge Benjamin Burgess, to whom the case had been assigned, set an evidentiary hearing to resolve the factual dispute.
The State called four witnesses. First, Shirley Lowe, Judge Waller's administrative assistant, testified that she maintains his criminal jury trial docket. Based on handwritten notations on Judge Waller's official docket, which she entered on Full Court, Lowe stated that Gore had requested the November 14 continuance.
Second, the State called Amy Allred, a court clerk who fills in for Lowe when she is gone. On January 4, 2006, Allred changed an entry on Full Court to reflect that the State had requested the November 14 continuance. Although she did not recall making the change, she testified that she would not have made the change unless someone for the State had requested she do so.
Third, Rivina Souzik, a docket clerk in the district attorney's office testified that her office's November 14, 2005, docket notes indicated that Gore had requested the continuance.
Fourth, the State called Christine Ladner, the prosecuting attorney in Gore's case. Based on her notes and limited recollection, Ladner testified that Gore's counsel wanted the continuance after expressing an interest in negotiating a plea shortly before the November 14, 2005, trial date. Based on possible plea negotiations, Ladner knew the case would not go to trial on that date. Ladner also admitted that she had another trial scheduled for November 14, 2005, and recalled briefly meeting with Gore's counsel as she waited for that trial to begin, at which time they agreed on a new trial date. Ladner, however, insisted that she understood Gore's counsel to be ...