WALLUK v. STATE, A-9488 (Alaska App. 8-1-2007)
Court of Appeals No. A-9488.Court of Appeals of Alaska.
August 1, 2007.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, and Charles T. Huguelet, Superior Court Judge, Trial Court No. 3KN-04-2580 CR.
Colleen Murray and Margi A. Mock, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angela G. Jamieson, Assistant District Attorney, and June Stein, District Attorney, Kenai, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
COATS, Chief Judge.
Patrick Walluk was convicted of fourth-degree domestic violence assaultPage 2
and failure to appear. He appealed his assault conviction to this court, arguing that his right to a speedy trial was violated because he was not brought to trial within the 120 days required by Alaska Criminal Rule 45.
After reviewing the record, we determined that Walluk’s claim hinged on the twenty-day period from February 2, 2005, when the district court quashed a bench warrant for Walluk’s arrest for failure to appear, to February 22, 2005, the new date for Walluk’s trial. District Court Judge David S. Landry excluded this twenty-day period from his Rule 45 calculation. But Judge Landry did not adequately explain his reason for excluding this period. We concluded that Walluk would be entitled to dismissal of his case if Judge Landry erroneously excluded this twenty-day period, and therefore remanded the case for additional findings on this issue.[fn1]
Superior Court Judge Charles T. Huguelet held an evidentiary hearing on remand. At that hearing, the State argued, for the first time, that Judge Landry properly tolled Rule 45 because the court needed an additional twenty days to get Walluk’s case back on the trial calendar after it quashed the warrant for Walluk’s arrest.[fn2] Judge Huguelet declined to rule on whether this would be a proper basis to toll Rule 45 under the circumstances of Walluck’s case because he found no evidence in the record that the district court had tolled Rule 45 for this purpose. Judge Huguelet found that Judge Landry had erred in tolling Rule 45 for this twenty-day period. The parties have not challenged Judge Huguelet’s findings on remand.Page 3
Accordingly, we hold that Walluk’s Rule 45 right was violated.
Conclusion
Walluk’s assault conviction is REVERSED and the district court is directed to dismiss his case.