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Baily v. Anchorage (4/3/98) ap-1583
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
KELLY G. BAILEY, )
) Court of Appeals No. A-6590
Appellant, ) Trial Court No. 3AN-M96-7101CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1583 - April 3, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff and Nancy J. Nolan, Judges.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellant. Pamela Dale, Assistant
Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Alaska Criminal Rule 45(c)(1) currently provides that,
with certain exceptions not pertinent here, the time within which
a defendant must be tried begins to run from the date the "charging
document" is served upon the defendant. This case raises the
question of whether an "Order and Conditions of Release" form
issued by a magistrate following an arrestee's initial appearance
under Criminal Rule 5(a)(1) is a "charging document" for purposes
of Rule 45(c)(1), triggering the time period for bringing the
arrestee to trial. We hold that it is not.
On July 3, 1996, Kelly G. Bailey was arrested and taken
before a magistrate pursuant to Criminal Rule 5(a)(1). The
magistrate ordered Bailey to be held in lieu of $2500 bail. The
magistrate then signed an "Order and Conditions of Release" form
that was captioned "State of Alaska vs. Kelley [sic] Bailey." This
form bore the case number "96-5035 Cr," and it referred to the
"charges" against Bailey as third-degree assault, driving while
intoxicated, and resisting arrest.
However, the State of Alaska never brought these or any
other charges against Bailey. When Bailey appeared in court on
July 24 (as she had been directed to do upon her release), no
charges had been filed, and Bailey was discharged. When she left
court on July 24, Bailey had never been served with any criminal
complaint, indictment, information, or citation.
Six weeks later, on September 9, 1996, the Municipality
of Anchorage filed a criminal complaint against Bailey under a new
case number, 3AN-M96-7101 Cr. This complaint charged Bailey with
the municipal offenses of driving while intoxicated and resisting
an officer. AMC sec. 09.28.020(A); AMC sec. 08.05.530(A).
On December 12, 1996, Bailey moved to dismiss these
charges. She argued that the time for bringing her to trial had
already expired because Rule 45 began to run on July 3, the day she
was arrested and appeared in front of the magistrate. Acting
District Court Judge Nancy J. Nolan denied Bailey's motion. Bailey
then pleaded no contest to the municipal charges, preserving her
Rule 45 motion for appeal. See Cooksey v. State, 524 P.2d 1251,
1255-57 (Alaska 1974).
In this appeal, Bailey argues that the bail release form
she received from the magistrate at her initial appearance
constituted a "charging document" for purposes of Rule 45(c)(1).
Bailey contends that the bail release form was a "charging
document" because the form notified her that the State of Alaska
was bringing a criminal case against her and that she was charged
with various offenses under state law.
Criminal Rule 45(c)(1) currently provides, in pertinent
part, that "the time for trial shall begin running, without demand
by the defendant, from the date the charging document is served
upon the defendant." This is a significant change from the pre-
1993 version of the rule. Under the former version of the rule,
the time for bringing a defendant to trial generally began to run
"[f]rom the date the defendant [was] arrested, initially arraigned,
or from the date the charge (complaint, indictment, or information)
[was] served upon the defendant, whichever [was] first."
In her ruling, Judge Nolan wrote that "it appears that
the rule was amended [in 1993] specifically to eliminate an arrest
as the triggering event for commencement of the rule." Judge
Nolan's conclusion is firmly supported by memoranda of the Supreme
Court's Standing Committee on the Rules of Criminal Procedure, the
body that proposed the 1993 amendment to the court. The Criminal
Rules Committee proposed that Rule 45(c) be amended so that the
time for bringing a defendant to trial would no longer begin
running from the date of the arrest, but would instead begin to run
from the date the defendant was held to answer to a charge.
Bailey concedes that the 1993 amendment to Rule 45(c)(1)
was intended to avoid having the time for trial begin running on
the date of the defendant's arrest. She argues, however, that she
was "held to answer" when she was brought before the magistrate and
then released on bail.
Bailey's argument is premised on an interpretation of
Rule 45(c)(1) that is inconsistent with the legislative history of
the 1993 amendment. Under the pre-1993 version of Rule 45(c), a
formal arrest and a consequent appearance before a magistrate would
have triggered the running of the time for trial, even though the
arrest was not followed up with criminal charges. See Knowlton v.
State, 795 P.2d 1287, 1288 (Alaska App. 1990). But documents
generated by the Criminal Rules Committee show that one of the
Committee's purposes in proposing the 1993 amendment was to ensure
that such an arrest and initial appearance should no longer trigger
the running of Rule 45.
In a memorandum dated April 6, 1992, Committee member
Cynthia M. Hora told the Committee that Rule 45(c) should be
amended to avoid having the time for trial commence when a person
is "arrested and held to answer [through] the action[s] of the
police and [a] magistrate," if "the prosecutor later conclude[s]
that there [is] insufficient evidence to file a charge and cause[s]
the outright release of the defendant." (According to Hora's
memorandum, this same result the non-triggering of Rule 45
should apply even if the government at some later time decides to
formally charge the person "with the same offense for which he or
she was arrested.") (Quoting II Standards for Criminal Justice,
sec. 12-2.2 and 20-21 (1986).)
To ensure that Rule 45 would not be triggered by the
"action[s] of the police and magistrate" when the prosecuting
authority subsequently declines to file charges, Hora proposed that
Rule 45(c)(1) no longer refer to a person's arrest.
The Criminal Rules Committee apparently accepted Hora's
suggestion. In a letter to the members of the Alaska Bar
Association dated December 16, 1992, Court Rules Attorney Christine
Johnson used the following language to describe the Committee's
proposed amendment to Rule 45(c)(1): "The committee ... agreed
that the 120-day period should not begin to run until formal
proceedings are commenced." The Criminal Rules Committee's
proposed amendment to Rule 45(c) was ultimately adopted by the
Alaska Supreme Court, and the term "arrested" was deleted from the
rule.
Bailey's situation is the very one described in the
legislative history; Rule 45(c) was amended to avoid the very
result for which Bailey argues. We hold that, under the current
version of Criminal Rule 45(c)(1), a person's arrest and initial
appearance before a magistrate does not trigger the running of the
time for trial (unless the person is also served with a charging
document at that time).
For this purpose, "charging document" means a criminal
complaint, indictment, information, or citation a document that
is legally sufficient to initiate a criminal lawsuit and support
the ensuing issuance of process. See Criminal Rules 3(a), 4(a),
7(a), and 9(a), as well as AS 12.25.220 (declaring that a citation
meeting the requirements of the statute shall be "considered ... a
lawful complaint for the purpose of prosecution"). See also
Ahmaogak v. State, 595 P.2d 985 (Alaska 1979) (construing Rule
45(c)'s earlier phrase "complaint, indictment, or information" to
include uniform citations). The bail order in this case was not a
"charging document" within the meaning of Criminal Rule 45(c)(1).
We therefore agree with Judge Nolan that the "Order and
Conditions of Release" form given to Bailey by the magistrate at
her initial appearance on July 3, 1996, did not trigger the running
of the time for trial under Criminal Rule 45(c)(1). Judge Nolan
properly denied Bailey's motion to dismiss the case.
The judgment of the district court is AFFIRMED.
