You have to be there to acquiesce.

Patrick H. Dunn won in State v. Donnie Taylor, No. 104,455 (Kan. App. August 26, 2011)(unpublished), affirming Judge Rome's dismissal of several drug charges based on a statutory speedy trial violation. At one pre-trial proceeding, Mr. Taylor's lawyer appeared and requested a continuance, but Mr. Taylor was not present. The COA described the issue:

The issue is this: Did Taylor's absence from the December 1, 2009, hearing in which his lawyer requested and received a continuance require that the resulting delay be charged against the State? If so, the 90–day deadline expired during that time, requiring Taylor's discharge based on a violation of K.S.A. 22-3402. . . . .

The Arrocha holding fits the material facts here in that Taylor's counsel sought a continuance that pushed the trial date past the speedy trial deadline. But—and this is a crucial but—in that case Arrocha was present by his counsel's side and did not personally object. Here, Taylor was not to be found physically in the courtroom or electronically present through an audio-visual connection from a remote location. In short, Taylor could not have lodged a personal objection because he had no opportunity to do so despite the statutory requirement of K.S.A. 22-3208(7) that he be present at the motion hearing and, thus, be afforded that opportunity.

We need not determine if the hearing on the motion to continue was a critical stage of the case in a constitutional sense, though it might have been. Taylor's statutory right to be present is of sufficient magnitude to direct the outcome here. There was, of course, no mystery about Taylor's whereabouts. He was an involuntary resident of the Reno County jail and presumably could have been produced for the December 1 hearing. This is not a situation in which a defendant voluntarily failed to appear and, thus, reasonably might be viewed as having waived any personal objection to the proceedings. Taylor had a right to voice an objection to his counsel's motion for a continuance, particularly one pushing the trial past what would have been the speedy trial deadline. And he had a right to be present at the motion hearing.

Neither of those rights was observed except in the breach. The combined effect was to deprive Taylor of the opportunity to assert his speedy trial right. And, in turn, he cannot be said to have agreed to or acquiesced in the compromise of that right. The lesson, if there be one, is that a criminal defendant needs to be present at a hearing on a motion for a continuance and should affirmatively state on the record his or her personal assent to the request before the judge rules.

Good lesson. 

 [Update: the state did not file a PR and the mandate issued on September 30, 2011.]