State v. Sparks , 600 N.W.2d 550 ( 1999 )

600 N.W.2d 550 (1999) 1999 SD 115

STATE of South Dakota, Plaintiff and Appellant,
v.
Craig SPARKS, a/k/a, Philip M. Richman, Defendant and Appellee.

No. 20806.

Supreme Court of South Dakota.

Considered on Briefs June 1, 1999. Decided August 25, 1999.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellant.

No appearance for appellee.

KONENKAMP, Justice.

[¶ 1.] The State appeals the dismissal of charges against Craig Sparks for violation of the 180 day rule.^[1] We reverse and remand.

FACTS

[¶ 2.] After a traffic stop and search of his vehicle on March 29, 1997, Sparks was arrested for possession of stolen property, possession of a controlled substance and false personation. The State filed uniform complaints charging these offenses and Sparks made his first appearance before a magistrate judge on March 31. At that time, he applied for court appointed counsel and the Northern Hills Public Defender's Office was appointed to represent him. The following is a chronology of the subsequent events leading to the dismissal of the charges against him:

4-10-97   Sparks is indicted for: one
count of commission of a felony
while armed with a firearm;
alternative counts of
possession of a controlled
drug or substance with intent
to distribute and possession of
a controlled drug or substance;
one count of grand
theft by possession of stolen
property; one count of false
personation; and one count of
perjury.[2]
4-11-97   A part two habitual offender
information is filed alleging
Sparks has a prior felony conviction.
The Northern Hills
Public Defender's Office also
files a motion to withdraw on
the basis that Sparks intends
to retain private counsel. The
motion is granted on the same
date.
5-8-97    Arraignment. Sparks appears
with local counsel Bryce Flint
and enters not guilty pleas.
Flint indicates his appearance
is limited and that Sparks has
retained Oklahoma attorney C.
Rabon Martin who intends to
go through the process for pro
hac vice admission in order to
appear on Sparks' behalf. The
trial court sets a motions hearing
for June 5.

6-5-97    Motions hearing. Sparks again
appears with attorney Flint
who advises that attorney Martin
is completing the paperwork
for pro hac vice admission.
The trial court directly advises
Sparks of his right to trial
within 180 days and that his
retention of out of state counsel
is causing delay. The trial
court further advises it will not
count the time from the 6-5
hearing until a new hearing set
for 6-26 as part of the 180
days. Sparks indicates he understands.
The trial court instructs
the State to prepare an
order to that effect and the
State agrees. No such order is
ever filed.
6-6-97    Attorney Martin requests that
a hearing set for June 25 be
postponed until July 1 or July 7
for his traveling convenience.
The State agrees and the hearing
is eventually rescheduled
for July 17.
7-1-97    Attorney Martin files his application
for admission pro hac
vice. Martin also files an extensive
set of pretrial motions
including various motions to
dismiss and to suppress evidence
seized after the traffic
stop.
7-17-97   Motions hearing. Sparks appears
with both attorneys
Flint and Martin. Flint
moves Martin's admission pro
hac vice and admission is
granted. The trial court then
conducts an evidentiary hearing
on the suppression motions.
Trial is set for October
22 and 23.
9-27-97   180 days after Sparks' first
appearance.
10-22-97  Hearing. The trial court orally
grants the suppression
motions and directs attorney
Martin to prepare findings of
fact, conclusions of law and
an order suppressing evidence.
Martin agrees to
submit them. The trial court
also advises that the State
has ten days to appeal the
suppression order and the
sooner Martin gets his findings
and conclusions in, the
sooner the appeal period will
run. There is also a plea
bargain in which Sparks stipulates
to his guilt on the perjury
charge and pleads guilty
to a simple assault charge in
another file in exchange for
the dismissal of the false personation
charge and the part
two information. However,
the other charges in the indictment
are to remain viable.
Sparks is then adjudicated
guilty of perjury and
simple assault and sentencing
is set for 12-4-97.
11-4-97   The State files a motion for
the trial court to reconsider its
order suppressing evidence.
11-18-97  The State files a motion for
the trial court to reopen the
suppression hearing to consider
additional evidence. A
hearing is set for 12-4-97.
12-4-97   Hearing on the motion to reconsider
the suppression issue
and reopen the hearing. The
trial court states it intends to
rely on its earlier ruling, but
directs briefing on the issue.
Sparks is also sentenced for
perjury and simple assault.
12-5-97   Entry of a written judgment
and sentence for perjury and
simple assault. Also, Attorney
Martin apparently files
proposed findings of fact and
conclusions of law and a proposed
order suppressing evidence,

but they are never
signed.
12-??-97  Additional briefs are exchanged
on the suppression
issue.
2-17-98   The trial court enters a letter
decision granting the State's
motion to reconsider the suppression
order and reopen the
suppression hearing.
3-9-98    The trial court sets a hearing
on the State's motion to reopen
and/or reconsider the suppression
issue for 5-15-98.
5-14-98   The State files a motion for
the trial court to consider a
transcript of a police communication
for purposes of its
motion to reconsider the suppression
issue.
5-15-98   Hearing on the motion to reopen
and/or reconsider the
suppression issue.
8-4-98    The trial court enters a letter
decision permitting the State to
reopen and reversing its earlier
suppression order, but questioning
whether the 180 day
rule may have expired.
8-31-98   The trial court enters a letter
decision finding the State's
motions to reopen and/or reconsider
did not fall within 180
days of Sparks' first appearance
and failing to find good
cause to "discount" a sufficient
number of days to make the
motions timely.
9-4-98    The trial court enters a formal
order finding the State's motions
to reopen and/or reconsider
the suppression issue untimely
under the 180 day rule.
11-4-98   583 days after Sparks' first
appearance. The trial court
enters an order "dismissing
the action" for violation of the
180 day rule.

[¶ 3.] The State appeals.

ISSUE

[¶ 4.] Did the trial court err in its dismissal of charges for violation of the 180 day rule?

[¶ 5.] The State contends the trial court erred in its dismissal of charges for violation of the 180 day rule.^[3] We review the determination of whether the 180 day period has expired as well as what constitutes good cause for delay under a de novo standard. State v. Pellegrino, 1998 SD 39, ¶ 23, 577 N.W.2d 590, 599; State v. Fowler, 1996 SD 79, ¶ 10, 552 N.W.2d 391, 393; State v. Cooper, 421 N.W.2d 67, 69 (S.D. 1988). Here, the trial court erred in its 180 day computations.

[¶ 6.] It is settled that "the period of delay from the time of [an] attorney's motion to withdraw until the time when alternate counsel is retained or appointed (or the defendant chooses to proceed pro se) is to be excluded from the computation of the 180-day rule." State v. Webb, 539 N.W.2d 92, 95 (S.D.1995). Here, Sparks' original counsel, the Northern Hills Public Defender's Office, filed a motion to withdraw on April 11, 1997. Although Sparks had already retained alternate counsel by that time, counsel was from out of state and could not officially appear on Sparks' behalf until approval of his motion to appear pro hac vice on July 17, 1997. In accord with the principles of Webb, supra, this entire ninety-seven day period of delay is attributable to Sparks and should have been excluded by the trial court in its computation of the 180 day period.

[¶ 7.] Also to be excluded from computation of the 180 days is, "the time from filing until final disposition of pretrial motions of the defendant[.]" SDCL 23A-44-5.1(4)(a)(emphasis added). Here, Sparks filed pretrial motions on July 1, 1997. Although his suppression motions were orally granted at a hearing on October 22, 1997, no written orders disposing of his motions were ever entered. It is settled that, "[o]rders are required to be in writing because the trial court may change its ruling before the order is signed and entered.^[4] For this reason, unrecorded rulings on motions are ineffective and need not be considered at a later date." State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989) (citations omitted)(footnote added). Since the oral orders disposing of Sparks' motions were ineffective, there was never a "final disposition" of the motions and the entire time after their filing should have been excluded from the 180 day computation.^[5] Because this time overlaps with the time excluded for Sparks' change of counsel by 16 days, it adds only another 475 days to the time to be excluded from the 180 day period rather than the full 491 days between July 1, 1997 and November 4, 1998 (i.e., the date of the dismissal of the charges).

[¶ 8.] Based upon these calculations, the trial court should have excluded a total of 572 days from its computation of the 180 days (i.e., 97 + 475 = 572). Although 583 days actually passed from Sparks' first appearance through the dismissal of the charges against him, only eleven of those days counted against the 180 day period (i.e., 583—572 = 11). Thus, at the time of the dismissal, 169 days remained for Sparks' trial (i.e., 180—11 = 169). It follows that the trial court erred in its dismissal of charges for violation of the 180 day rule.

[¶ 9.] Reversed and remanded.

[¶ 10.] MILLER, Chief Justice, AMUNDSON and GILBERTSON, Justices, concur.

[¶ 11.] SABERS, Justice, concurs in result.

SABERS, Justice (concurring in result).

[¶ 12.] I concur in result as I would reverse and expedite.

NOTES

[1] The 180 day rule requires a defendant to be brought to trial within 180 days of his first appearance before a judicial officer on an indictment, information or complaint. SDCL 23A-44-5.1.

[2] The perjury count was related to Sparks' misrepresentation of his identity in applying for court appointed counsel.

[3] Sparks did not submit an appellate brief.

[4] This case aptly demonstrates that fact.

[5] Although Sparks eventually submitted proposed findings and conclusions and a proposed order on the suppression issue, when the trial court failed to act on his proposals, the burden of demanding entry of a written order remained with Sparks. See State v. Sickler, 334 N.W.2d 677, 679 (S.D.1983)(burden of demanding ruling rests upon party desiring it).