Case Number: 2018 Ark. App. 241
Judge: BART F. VIRDEN
Court: ARKANSAS COURT OF APPEALS
Plaintiff's Attorney: Brad Newman, Ass’t Att’y Gen
Defendant's Attorney: Joseph C. Self
Description: Vasquez was arrested pursuant to a charge of rape on May 7, 2016, and he was not
tried until August 7, 2017, 457 days later, ninety-one days beyond the one-year anniversary
of his arrest.1 During the pendency of the case, the circuit court granted four continuances.
The State requested the first continuance due to its need for more time for the Arkansas
State Crime Laboratory to process evidence. Vasquez did not object, and the circuit court
granted the continuance from February 6, 2017, to March 9, 2017. The circuit court did
not exclude the time for the purpose of speedy-trial calculation. The State filed a second
motion for continuance in which it reiterated its request for more time for evidence
testing. Vasquez did not object to the request. The circuit court granted the continuance
and ordered that the time was not excluded for purposes of speedy-trial calculation. The
new trial date was set for April 13, 2017. Vasquez filed the third motion for a continuance
due to the unavailability of a witness for trial, and the circuit court granted the motion,
excluding the time for purposes of speedy-trial calculation and setting the trial for July 6,
On July 6, 2017, the 344th non-excluded day, Vasquez and the State appeared in
court, ready for trial; however, due to an error in the circuit court’s juror-notification
system, some of the jurors had been given the wrong date to report for duty, and not
enough jurors were present to hold the trial. The circuit court found that the trial had to
be continued until the next available court date, August 7, 2017. The circuit court also
1The record does not contain an arrest warrant or docket entry showing Vasquez’s date of arrest; however, in his motion to dismiss, Vasquez states that he was arrested on May 7, 2016. The State does not contest this statement, and we may assume that for the purposes of this appeal, Vasquez was arrested on May 7, 2016.
found that the phone-system error constituted good cause as described by Arkansas Rule of
Criminal Procedure 28.3(h) and that the thirty-one-day continuance was excluded from
speedy-trial calculation. Vasquez objected, and the circuit court noted the objection.
On August 7, 2017, Vasquez filed a motion to dismiss based on the violation of his
right to a speedy trial. In his motion, Vasquez asserted that as of July 31, 2017, the State
was no longer able to try his case because his constitutional right to a speedy trial prevented
such. Vasquez argued that a jury could have been called in long before August 7, and as it
was, the trial was eight days past the time period for a speedy trial. Vasquez asserted that
though the unavailability of the jury may constitute good cause for delay for one day, the
trial could have been scheduled earlier than August 7. The State responded that the
continuance constituted good cause and that the circuit court granted the minimal
continuance possible because it set the trial for the next available trial date, the circuit
judge had a vacation scheduled during the thirty-one day time period, and there were
“other cases scheduled on the other days[.]” The State also asked that the circuit court take
judicial notice that the logistics of holding a trial, including subpoenaing witnesses and
scheduling court interpreters, takes a certain amount of time to accomplish. The circuit
court denied Vasquez’s motion, stating that because only fifteen of the requisite twenty-six
potential jurors had been present for trial on July 6, it had no discretion in the matter and
had been forced to issue a continuance. The circuit court also noted that two court
interpreters had to be rescheduled for a jury trial, which had bearing on when the case was
set for trial.
The jury found Vasquez guilty of rape and sentenced him to ten years in the ADC.
Vasquez filed a timely notice of appeal.
II. Speedy Trial
On appeal, we conduct a de novo review to determine whether specific periods of
time are excludable under our speedy-trial rules. Yarbrough v. State, 370 Ark. 31, 33, 257
S.W.3d 50, 53 (2007).
Pursuant to Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant
must be brought to trial within twelve months unless there are periods of delay that are
excluded under Rule 28.3. The twelve-month period for bringing an accused to trial begins
to run on the date the information is filed, or the date of arrest, whichever occurs first. Id.
It is the burden of the State and the circuit court to ensure that the defendant is brought to
trial within the required time period so as not to violate the defendant’s right to speedy
trial; the defendant, on the other hand, is not required to demand a trial to preserve his or
her right to speedy trial. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). Once a prima
facie case for the violation of a defendant’s right to a speedy trial is established by the
accused, the State has the burden of showing that the delay exceeding the twelve-month
period was the result of the defendant’s conduct. Scroggins v. State, 312 Ark. 106, 848
S.W.2d 400 (1993). Upon request of a party, the circuit court may grant a continuance, but
the movant has the burden of showing good cause. David v. State, 295 Ark. 131, 748
S.W.2d 117 (1988). Notwithstanding good cause, the record must properly explicate the
rationale for speedy trial to be tolled. Berry v. Henry, 364 Ark. 26, 216 S.W.3d 93 (2005).
In the instant case, the parties agree that Vasquez was tried 457 days after his arrest;
thus, the burden was on the State to prove that the delay was excludable for speedy-trial
purposes. Vasquez concedes that the eighty-four-day continuance he requested from April
13 to July 6, 2017, was properly excluded from speedy-trial calculation, but he contends
that even excluding that time, the State brought the case to trial eight days past the speedy
trial terminus. Vasquez asserts that the State did not meet its burden regarding the final
continuance, and the circuit court erred by refusing to include the thirty-one days in the
Our analysis of this issue focuses on the State’s assertion that bringing a case to the
jury requires a certain amount of time, and thirty-one days is a reasonable delay pursuant to
Rule 28.3(h), which allows exclusion of “other periods of delay for good cause.” In denying
the motion to dismiss, the circuit court rejected Vasquez’s argument that the jury could
have been called “the next day” after the notification-system error was discovered. The State
asserted, and the circuit court agreed, that logistical issues, including scheduling the two
necessary court interpreters for a jury trial, notifying jurors, and subpoenaing witnesses,
could not be accomplished in a just few days. In our de novo review of the record, we note
that the circuit court’s July 13, 2017 form that provides notice of trial to counsel sets forth
that for a jury trial, “[a]ttorneys shall notify the Court of the need of Interpreters . . . NO
LATER THAN TEN (10) DAYS BEFORE TRIAL DATE, (AOC’S REQUIREMENT)[.]”
(Emphasis in the original.) While the circuit court judge’s absence due to a vacation does
not constitute good cause for delay, the other factors named above do, and the court’s
decision to set the trial for the next available court date does not constitute undue delay.
In arguing that the circuit court erred in rejecting his speedy-trial motion, Vasquez
cites several cases he argues require dismissal of his charges. We find the cases to be
factually distinguishable from Vasquez’s situation and not controlling here. In Tanner v.
State, 324 Ark. 37, 918 S.W.2d 166 (1996), the circuit court continued the case for one
month because it reset a capital-murder case for an earlier trial date, which moved Tanner’s
case to a date beyond the permitted time period. The instant case differs from Tanner
because here, the circuit court did not issue a continuance to hear a case it deemed more
important. Instead, a true bar to having the trial arose, and the court had no choice but to
continue the case until the requisite number of jurors could be present. The other cases
cited by Vasquez, Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998), Novak v. State,
294 Ark. 120, 741 S.W.2d 243 (1987), and Campbell v. State, 26 Ark. App. 133, 761
S.W.2d 243 (1998), involve an inordinately long delay in coming to trial because of
emergency circumstances that arose suddenly on or near the day of trial. The holding in
each of these cases is that, though an emergency can be good cause for delay—a death in the
judge’s family, the judge’s illness, and an ice storm—the delay cannot continue after good
cause no longer exists. In each of the above cases, the delays ranged from seventy days to
almost four months, which was much longer than necessary.
Outcome: Here, the one-month delay to the next available court date is not unnecessarily lengthy in light of the fact that jurors had to be notified, witnesses subpoenaed, and translators scheduled.