[W]e reject the State's argument that all of the time between the filing of the motion to suppress and the resolution of the motion is attributable to the defendant, regardless of the circumstance. And because the State does not argue that its request for a continuance of the June 6, 2007, suppression hearing was reasonably occasioned by or attributable to the filing of the motion to suppress, we need not consider that issue.Nevertheless, we note that when the State filed its motion for continuance of the suppression hearing, it asserted it needed more time to respond to the motion to suppress and that the prosecutor had a family emergency. The State did not suggest, however, that the additional time was needed because there had been insufficient time to respond. Nor would the record support such an argument, since the State's motion to continue the suppression hearing was made more than 2 months after the motion to suppress was filed.
Saturday, October 24, 2009
Unreasonable delay counts against State for speedy trial purposes
Scott C. Gyllenborg , of Gyllenborg & Dunn, P.A., won in State v. Harms, No. 100,159 (Kan. App. Oct. 23, 2009) (unpublished), affirming Judge Davis' order dismissing criminal charges against Harms based upon the state's failure to bring Harms to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).
The issue in the case was whether time would be attributable to Harms for speedy trial purposes when the state filed a motion to continue the suppression hearing (several months after Harms had filed a motion to suppress). The COA held that the time was attributable to the State:
The COA noted, "when the defendant files a motion, only a reasonable time to process the motion may be charged against the defendant." Because the time after the state's motion to continue was not reasonably attributable to Harms' filing of the motion to suppress, the COA affirmed the dismissal of the charges against Harms because Harms was not brought to trial within 180 days of his arraignment as required by K.S.A. 22-3402(2).
[Update: the state filed a PR on November 23, 2009.]
[Further update: the KSC denied the PR and the mandate issued on June 25, 2010.]