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Billman & Kang v. Municipality of Anchorage (3/13/98) ap-1578
NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TIMOTHY BILLMAN and ) Court of Appeals Nos. A-6578
TAE K. KANG, ) and A-6682
) Trial Court Nos. 3AN-94-9180
Appellants, ) and 3AN-95-1319 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1578 - March 13, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Sigurd E. Murphy, Stephanie Rhoades, and James
N. Wanamaker, Judges.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellants. Benjamin O. Walters, Jr.,
Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The two defendants, Timothy Billman and Tae K. Kang, were
convicted of driving while intoxicated, Anchorage Municipal Code
9.28.020(A). On appeal, they assert that they were not brought to
trial within the time limits of Alaska's speedy trial rule, Criminal
Rule 45, and thus the charges against them should be dismissed. The
crucial issue in this appeal is the meaning of an order that this
court issued on January 12, 1996, dealing with the hundreds of cases
(including Billman's and Kang's) that were held in abeyance pending
our decision of State v. Zerkel, File No. A-5773. In particular,
the issue is whether our January 12th order returned jurisdiction
over the defendants' cases to the district court. We agree with
Billman and Kang that this order returned jurisdiction of their
cases to the district court, thus restarting the defendants' speedy
trial calculation under Criminal Rule 45. However, we also conclude
that the defendants' scheduled trial date of July 17, 1996 was
within the time limits of Rule 45. We therefore affirm the
defendants' convictions.
Billman and Kang were each arrested for driving while
intoxicated; they submitted to breath tests which showed their
blood-alcohol levels to be .10 percent or higher. Based on these
breath-test results, the Department of Public Safety took
administrative action against both defendants' driver's licenses.
At the same time, the Municipality of Anchorage was
pursuing criminal charges against Billman and Kang for driving while
intoxicated. The two defendants asked the district court to dismiss
the DWI charges on double jeopardy grounds; they asserted that the
suspension of their driver's licenses constituted a punishment for
their acts of driving while intoxicated, and therefore the double
jeopardy clause prohibited the government from trying to punish them
again by pursuing the criminal prosecutions.
The district court agreed with the two defendants and
ordered the DWI charges dismissed. The Municipality of Anchorage
appealed the dismissals to this court. Because we were already
considering the same double jeopardy issue in a group of
consolidated cases now known as State v. Zerkel, we held the
Municipality's appeals in abeyance pending our decision of Zerkel.
Ultimately, in State v. Zerkel, 900 P.2d 744 (Alaska App.
1995), this court held that the administrative suspension or
revocation of a driver's license does not constitute a "punishment"
for double jeopardy purposes and thus the government can prosecute
a defendant for driving while intoxicated (or breath-test refusal)
even after the government has taken administrative action against
the defendant's driver's license. However, the Municipality's
appeals in Billman's and Kang's cases were still held in abeyance
pending the Alaska Supreme Court's action on a petition for hearing
(that is, a petition for discretionary review) in Zerkel.
On December 4, 1995, the Alaska Supreme Court denied
hearing in Zerkel. Five weeks later, on January 12, 1996, this
court issued an order dealing with all of the DWI and breath-test
refusal cases that had been held in abeyance pending a final
decision in Zerkel. In Paragraph 2(a) of that order, we addressed
"all cases [like Billman's and Kang's] 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 prosecution for a related driving offense":
[T]hese cases shall be REMANDED to the trial
courts for further consideration in light of this court's decision
in Zerkel. Any previously filed motion for stay that has not
already been granted shall be deemed to have been granted nunc pro
tunc.
As we recently held in Garcia v. Anchorage, 947 P.2d 1363
(Alaska App. 1997), the Rule 45 calculation for all of these Zerkel-related
cases was restarted at Day 1 when we remanded these cases
to the district court. Our January 12th order was apparently
distributed the following Monday that is, on January 15, 1996
so Day 1 for Rule 45 purposes was January 16th. See Nickels v.
State, 545 P.2d 163, 165 (Alaska 1976) (when an event triggers Rule
45, the following day is deemed Day 1).
No action was taken in Billman's and Kang's cases until
April 23rd. On that day, the Municipality filed formal motions
asking the district court to reconsider its earlier dismissals of
the two defendants' cases in light of Zerkel, and to set the
defendants' cases for trial. Three weeks later, on May 15th,
Billman and Kang filed oppositions to the Municipality's motions;
the two defendants argued that the time for bringing them to trial
under Rule 45 had already expired. On June 26th, the district court
granted the Municipality's motions, set aside its earlier dismissals
of Billman's and Kang's prosecutions, and calendared the defendants'
trials for July 17, 1996.
The oppositions filed by Billman and Kang on May 15th
were, in effect, motions asking the district court to dismiss their
cases on Rule 45 grounds. The filing of these motions tolled the
running of Rule 45. See Criminal Rule 45(d)(1); State v. Angaiak,
847 P.2d 1068, 1072 n.5 (Alaska App. 1993). The question, then, is
whether Rule 45 had already expired on May 15th.
The district court denied the defendants' motions to
dismiss because the court concluded that, in our January 12th order,
we did not return jurisdiction over the defendants' cases to the
district court. The district court interpreted our order to mean
that, for all of the Zerkel-related cases covered by Paragraph 2(a),
we asked the district court to reconsider any previously-entered
dismissals in light of Zerkel but, at the same time, we retained
jurisdiction over all of these cases pending the outcome of the
district court's reconsiderations. The district court reached this
conclusion based on the fact that Paragraph 2(a) contained the
sentence: "Any previously filed motion for stay that has not
already been granted shall be deemed to have been granted nunc pro
tunc."
The district court's interpretation of our January 12th
order is mistaken. We did not retain jurisdiction over the cases
covered by Paragraph 2(a) of our order. These cases were explicitly
"remanded to the trial courts for further consideration in light of
... Zerkel". The sentence of Paragraph 2(a) dealing with "motion[s]
for stay[s]" was not intended to signify our desire to retain
control of these cases. Rather, we included this sentence to ensure
that, among the hundreds of prosecutions held in abeyance pending
our decision in Zerkel, no case would later be challenged on
procedural grounds because we had inadvertently failed to rule on
a motion for stay of proceedings (either trial proceedings or
appellate proceedings) motions that we were granting as a matter
of course.
Thus, in our order of January 12, 1996, we returned
jurisdiction over Billman's and Kang's cases to the district court.
For purposes of calculating Rule 45, Day 1 was January 16, 1996
the day following the distribution of our order.
However, our January 12th order returned jurisdiction to
the district court with directions to give "further consideration"
to the defendants' double jeopardy motions in light of Zerkel. That
is, the district court was directed to re-decide those double
jeopardy motions. Thus, the effect of our January 12th order was
to place Billman's and Kang's double jeopardy motions under
advisement again. And because these defense motions were again
under advisement, the Rule 45 computation remained tolled at Day 1.
See Rule 45(d)(1).
Under Rule 45(d)(1), the Rule 45 computation remained
tolled until either (a) the court ruled on the defendants' double
jeopardy motions or (b) the court held those motions under
advisement, undecided, for longer than 30 days. As explained above,
the district court took no action in Billman's and Kang's cases for
three months. (Action was finally prompted by the Municipality's
April 23rd motion for formal reconsideration of the court's earlier
rulings on the defendants' double jeopardy contentions.) Thus, the
Rule 45 clock commenced running again on February 15th the 31st
day that the district court held the defendants' motions under
advisement. February 15th effectively became Day 1 for Rule 45
purposes.
This means that on May 15th, when the defendants filed
their motions to dismiss on Rule 45 grounds, Rule 45 had not
expired. Rather, the Rule 45 clock stood at 91 days: 15 days in
February (February 15th through 29th, inclusive), 31 days in March,
30 days in April, and 15 days in May.
On May 21st, the Municipality filed a response to the
defendants' Rule 45 arguments. From May 22nd until June 26th, the
district court held Billman's and Kang's Rule 45 claims under
advisement. Then, on June 26th, the district court denied the
defendants' Rule 45 motions and set the defendants' trial for July
17th. When Billman and Kang appeared for calendar call on July
16th, they again moved for dismissal under Rule 45, and again the
district court denied their motions to dismiss. [Fn. 1]
By the time the defendants appeared in court on July 16th,
the Rule 45 clock had advanced another 26 days. The Rule 45 clock,
which had stopped when Billman and Kang filed their Rule 45 motions
on May 15th, began to run again on June 21st the 31st day that
the district court held the defendants' motions under advisement.
Thus, the Rule 45 clock was ticking during the final 10 days of June
and the first 16 days of July. However, Rule 45 still had not been
violated. The total computation now stood at 117 days the
original 91 days (from Feb. 15th through May 15th), plus the
additional 26 days (from June 21st through July 16th).
In short, Billman and Kang were scheduled for trial within
the time limits of Rule 45. Accordingly, the judgements of the
district court are AFFIRMED.
FOOTNOTES
Footnote 1:
Ultimately, both defendants entered no contest pleas to the
DWI charges, reserving their right to litigate the Rule 45 issue.
See Cooksey v. State, 524 P.2d 1251, 1255-56 (Alaska 1974). They
do not assert that any further time elapsed under Rule 45.
