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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NOEL GARCIA, )
) Court of Appeals No. A-6389
Appellant, ) Trial Court No. 3SW-95-145 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
GEORGE MORANGE, )
) Court of Appeals No. A-6390
Appellant, ) Trial Court No. 3SW-94-383 Cr
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
RICHARD A. RUTAN, )
) Court of Appeals No. A-6391
Appellant, ) Trial Court No. 3SW-95-084 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1556 - November 14, 1997]
______________________________)
Appeal from the District Court, Third Judicial
District, Seward, George Peck, Magistrate.
Appearances: Patrick Reilly, Seward, for
Appellants Garcia and Morange. Daniel L. Aaronson, Kenai, for
Appellant Rutan. Todd K. Sherwood, Assistant District Attorney,
Sharon A. S. Illsley, District Attorney, Kenai, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In these consolidated appeals, we must apply Alaska
Criminal Rule 45(c) to a situation that is not specifically
addressed in the rule. As we explain in more detail below, the
three defendants in this case were each charged with driving while
intoxicated. After the Department of Public Safety took administra-
tive action against their driver's licenses, the district court
dismissed the criminal charges on double jeopardy grounds. These
charges were reinstated several months later, after we decided an
unrelated appeal (State v. Zerkel) that involved the same double
jeopardy issue.
The question is how Rule 45 should have been calculated
when the district court resumed jurisdiction over the defendants'
cases. We hold that, under these circumstances, Rule 45's speedy
trial "clock" was reset to Day 1 when jurisdiction over the
defendants' cases returned to the district court. Further, because
the defendants filed suppression motions, an additional period of
30 days was excluded from the Rule 45 calculation. For these
reasons, we conclude that Rule 45 was not violated, and we therefore
affirm the defendants' convictions.
In late 1994 and early 1995, Noel Garcia, George Morange,
and Richard Rutan were each charged in the Seward district court
with driving while intoxicated (DWI), AS 28.35.030(a). While the
defendants were awaiting trial, the Department of Public Safety
administratively revoked their driver's licenses. Following this
administrative action against their licenses, the defendants asked
the district court to dismiss the pending DWI prosecutions. They
asserted that the revocation of their licenses constituted a
"punishment" for the act of driving while intoxicated and, thus, any
additional criminal prosecution based on the same incident would
violate the guarantees against double jeopardy contained in the
Fifth and Fourteenth Amendments to the United States Constitution
and in Article I, Section 9 of the Alaska Constitution. The
district court agreed with the defendants and dismissed their
DWI cases. The State appealed these dismissals.
All of this happened while this court was actively
considering the same double jeopardy issue in a group of
consolidated cases now known as State v. Zerkel. The State's appeal
of the three dismissals in this case was held in abeyance pending
our decision in Zerkel. On July 28, 1995, this court held that
administrative suspension or revocation of a driver's license based
on the driver's act of driving while intoxicated or refusing to
submit to a breath test did not constitute a "punishment" for double
jeopardy purposes, and thus the driver could later be prosecuted for
a criminal offense based on the same conduct. State v. Zerkel, 900
P.2d 744 (Alaska App. 1995).
Within a few weeks of our decision, the Seward district
court reinstated the criminal charges against Garcia, Morange, and
Rutan. Almost immediately, the defendants filed motions to suppress
their Intoximeter results on the grounds that the machine used to
test their breath had not been properly calibrated.
However, the district court acted prematurely when it
reinstated the charges against the three defendants: jurisdiction
over the defendants' cases had not yet returned to the district
court. A petition for hearing was filed in Zerkel, and thus our
decision had not yet become final. [Fn. 1]
While the Zerkel petition for hearing was still pending,
the Seward district court recognized its jurisdictional error and
withdrew its orders reinstating the defendants' prosecutions. The
defendants' cases were again dismissed (with the State's appeal
pending).
On December 4, 1995, the supreme court denied the petition
for hearing in Zerkel. On January 12, 1996, this court issued an
order dealing with all the cases that had been held in abeyance
pending resolution of Zerkel. In pertinent part, our order stated:
In all cases where criminal charges were
dismissed based on a trial court ruling that administrative
suspension or revocation of the defendant's driver's license barred
a later criminal prosecution for a related driving offense: these
cases shall be REMANDED to the trial courts for further
consideration in light of this Court's decision in Zerkel.
For purposes of deciding the present appeals, we assume that the
Seward district court reassumed jurisdiction over Garcia's,
Morange's, and Rutan's cases on January 13, 1996 the day after
we issued this order.
The primary question presented in this appeal is how to
calculate the time for bringing these three defendants to trial
under Criminal Rule 45. Two provisions of Rule 45 subsections
(c)(2) and (c)(5) specifically address instances in which charges
are dismissed and then reinstituted. However, neither provision
directly governs the facts of this case.
Rule 45(c)(2) declares:
Refiling of Original Charge. If a charge
is dismissed by the prosecution, the refiling of the charge shall
not extend the time. If a charge is dismissed upon motion of the
defendant, the time for trial shall run from the date of service of
the second charge.
In the present appeal, the charges were dismissed upon the
defendants' motions, but there were never any "second charges".
Instead, the district court reconsidered its dismissal order in
light of Zerkel and then reinstated the original charges.
Rule 45(c)(5) declares:
Mistrial, New Trial or Remand. If the
defendant is to be tried again following a mistrial, an order for
a new trial, or an appeal or collateral attack, the time for trial
shall run from the date of mistrial, order granting a new trial, or
remand.
This provision addresses situations in which defendants have already
been tried once and now face a second trial, either because their
first trial ended in a mistrial, or because they appealed their
conviction and it was overturned, or because they received a
favorable ruling on a motion for new trial or a petition for post-
conviction relief. The present case is different: it involves a
situation in which charges were reinstated following the
government's appeal of a pre-trial order of dismissal and,
ultimately, the trial court's rescission of that order (after this
court returned jurisdiction over this matter to the trial court).
Under these facts, the defendants were not going to be "tried
again", but rather tried for the first time.
Thus, neither Rule 45(c)(2) nor Rule 45(c)(5) directly
addresses the present situation, where the government has obtained
reversal or reconsideration of a trial court's order of dismissal,
thereby causing reinstatement of the pre-existing charge. The
defendants contend that, because neither (c)(2) nor (c)(5) directly
applies to their case, the answer to the present Rule 45 problem
must be found in our decisions in Sundberg v. State, 657 P.2d 843
(Alaska App. 1982), and 667 P.2d 1268 (Alaska App. 1983).
The question in Sundberg was how to handle the Rule 45
speedy trial calculation when a defendant's case returned to the
trial court after being on hold for several months while the
appellate courts resolved a petition for review involving an
evidentiary ruling. This court ultimately ruled that extra time
should be granted in such circumstances up to 30 days
automatically, and more time if the State can prove that more time
is reasonable. Sundberg (II), 667 P.2d at 1270.
The defendants contend that their case should be decided
under the Sundberg rule. That is, the defendants argue that Rule 45
was tolled during the State's appeal (so that the intervening months
were not counted toward the 120 days), but the 120-day time limit
was not started anew when the district court reinstated the charges.
We conclude, however, that the defendants' case should not
be resolved under Sundberg. Criminal Rule 45 did not contain
subsection (c)(2) when Sundberg was decided; the supreme court
enacted this provision ten years later. See Supreme Court Order No.
1127 (effective July 15, 1993). When we apply the policy of
subsection (c)(2) to the present case, we conclude that Sundberg
should not govern this case. Instead, we apply a rule analogous to
the rule codified in subsection (c)(2): the district court's
reinstatement of the charges restarted the Rule 45 calculation at
Day 1.
Concededly, Rule 45(c)(2) only contains directions for
what to do if the State accepts the trial court's dismissal and
files new charges. It seems that no provision of Rule 45(c)
directly addresses what to do when charges are dismissed on the
defendant's motion but the State, instead of filing new charges,
pursues an appeal of the trial court's dismissal order and
ultimately obtains reversal or rescission of the dismissal.
However, when the supreme court added subsection (c)(2) to Rule 45,
the court manifested its intent to have Rule 45 restarted (not
merely extended) when a prosecution is reinstituted after criminal
charges have been dismissed on the defendant's motion. Rule
45(c)(2) essentially "overrules" this court's decision in State v.
Nitz, 684 P.2d 134, 138 (Alaska App. 1984), where we held that, when
a defendant is reindicted following the trial court's dismissal of
a previous indictment, the new indictment is "treated as a
continuation of the original prosecution for purposes of the speedy
trial rule". Under Rule 45(c)(2), this is no longer true; instead,
the speedy trial calculation is restarted.
The three defendants in this case admit that if the State
had not appealed the district court's dismissal order, but had
instead simply waited for our decision in Zerkel and had then
refiled DWI charges against the defendants, the Rule 45 calculation
would have started anew, pursuant to subsection (c)(2). We perceive
no convincing reason why the State's decision to appeal should
change the Rule 45 outcome. In either situation, criminal charges
have been dismissed on the defendant's motion and the government is
diligently seeking to reanimate the prosecution. If the filing of
an identical second charge restarts the Rule 45 calculation, so too
should the reinstatement of the original charge. [Fn. 2]
Accordingly, we hold that Rule 45 was restarted (reset to Day 1) on
January 13, 1996 the day we returned jurisdiction over the three
defendants' cases to the district court.
On that day, the district court already had suppression
motions under advisement in each of the three defendants' cases.
(As described above, the defendants had each filed a motion to
suppress their Intoximeter results during the period when the
district court did not have jurisdiction to hear such motions.)
Criminal Rule 45(d)(1) states that the Rule 45 "clock" is
tolled by the filing of a suppression motion, but the clock begins
to run again when the trial court holds a pre-trial motion under
advisement for longer than 30 days. [Fn. 3] The district court did
not rule on the defendants' suppression motions until February 22nd.
The 30-day time limit of Rule 45(d)(1) expired on February 11, 1996.
Thus, the Rule 45 clock began to run on February 12th; that day was
Day 1 for Rule 45 purposes.
Without further tolling, the 120 days allowed by Rule 45
for bringing the defendants to trial would have expired on June 10,
1996. The defendants were notified in mid-May that their cases
would be called for trial on May 28, 1996 a trial date that was
within the limits of Rule 45.
Within days of receiving these trial notices, each of the
defendants moved to dismiss their case for violation of Rule 45.
Under Rule 45(d)(1), the defendants' motions to dismiss tolled the
running of Rule 45. See State v. Angaiak, 847 P.2d 1068, 1072 n.5
(Alaska App. 1993). In the end, the defendants never went to trial:
after the district court denied their Rule 45 motions, the
defendants entered Cooksey pleas (reserving their right to raise
their Rule 45 claim on appeal). See Cooksey v. State, 524 P.2d
1251, 1255-57 (Alaska 1974).
For these reasons, we conclude that Rule 45 was not
violated in the defendants' cases. Our reasoning is different from
the reasoning employed by the district court, but we are authorized
to affirm the district court's decision on any legal ground revealed
by the record. Rutherford v. State, 605 P.2d 16, 21 n.12 (Alaska
1979); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961); Millman v.
State, 841 P.2d 190, 195 (Alaska App. 1992).
The judgements of the district court are AFFIRMED.
FOOTNOTES
Footnote 1:
Defendants Garcia and Morange argue, without citation to any
legal authority, that the district court never lost jurisdiction of
their cases, despite the State's appeal of the district court's
dismissal order. This contention is seemingly at odds with
Appellate Rule 203, which declares that "supervision and control of
the proceedings on appeal is in the appellate court from the time
the notice of appeal is filed". Rule 203 further states that the
appellate court "may at any time entertain a motion ... for
directions to the trial court, or to modify or vacate any order made
by the trial court in relation to the prosecution of the appeal".
This language implies that, once the trial court has issued a final
order and an appeal has been taken, the trial court no longer has
the authority to modify its order unless permission has been granted
by the appellate court. See, e.g., State v. Salinas, 362 P.2d 298,
301 (Alaska 1961), and Bowell v. State, 728 P.2d 1220, 1226 n.5
(Alaska App. 1986), overruled on other grounds, Echols v. State, 818
P.2d 691 (Alaska App. 1991), both indicating that a trial court does
not have jurisdiction to grant a motion for new trial while an
appeal is pending, unless the appellate court has remanded the case
to the trial court for that purpose.
Because Garcia and Morange have presented a purely conclusory
argument that fails to address the legal authorities cited in the
preceding paragraph (and fails to cite any others), we conclude that
the two defendants have inadequately briefed their argument that the
district court retained concurrent jurisdiction to modify its
dismissal order during the State's appeal. On account of this
inadequate briefing, the argument is waived. Petersen v. Mutual
Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v.
State, 577 P.2d 235, 237 n.2 (Alaska 1978).
Footnote 2:
We note that, in the present case, the district court's order
of dismissal became final, the State filed an appeal, and the
district court lost jurisdiction of the defendant's cases for
several months. We express no opinion as to how Rule 45 should be
calculated (extended versus restarted) when the trial court, still
having jurisdiction over the case, reinstates dismissed charges
shortly after it enters the order of dismissal -- for example, in
response to a timely motion for reconsideration filed by the
government. This situation is arguably more analogous to Sundberg,
so that the reinstatement could be viewed as simply a continuation
of the original proceedings for Rule 45 purposes.
Footnote 3:
Criminal Rule 45(d)(1) provides, in pertinent part:
The period of delay resulting from other proceedings
concerning the defendant, including but not limited to motions to
dismiss or suppress ... [is exempted from the speedy trial
calculation]. [However, no] pre-trial motion shall be held under
advisement for more than 30 days[,] and any time longer than 30 days
shall not be considered as an excluded period.
