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Uncounseled misdemeanor convictions, Vol. 38; Speedy trial, Vol. 49

Back in 2004, the legislature passed a new drunk-driving statute with a 20-year "lookback" provision:  if a defendant has five or more OVI convictions in the past 20 years, the next one becomes a fourth-degree felony (punishable, oddly enough, by up to five years in prison).  The difficulty of proving more-than-decade-old prior convictions was demonstrated by last week's 8th District decision in State v. Macalla.

In Macalla, just to be on the safe side, the state specified no fewer than seven previous convictions.  Good thing they did.  The defendant didn't stipulate to any of the prior convictions, which put the burden on the state to proved the details of those priors.  The defendant had two in 1986, and one each in 1987, 1988, 1989, 1995, and 1999.

Maybe.  The court held that the state failed to prove identity in one of the 1986 convictions, and tossed it.  A bigger problem for the state is that an uncounseled misdemeanor conviction can't serve as the basis for a specification.  The defendant probably could have won the case right there, because three of the prior convictions didn't contain satisfactory proof either that Macalla had an attorney of that he validly waived one. 

There was one problem:  as the Macalla opinion notes, there's a 1989 Supreme Court case, State v. Brandon, which holds that the state doesn't have the burden of proving that the prior conviction was uncounseled unless and until the defendant presents a prima facie case that it wasn'tThe 8th District's opinion notes that Macalla never testified or submitted an affidavit prior to trial claiming that he hadn't had counsel and so, according to them, he waived the issue.

I'm not so sure I buy that.  You could make a legitimate argument that the docket clerk's admission on cross-examination that there was no evidence that the prior convictions were counseled constituted "some" evidence on that.  Still, the safer course was for the defendant to simply introduce an affidavit on that point.  Word to the wise.

The court's treatment of the speedy trial issue was, to me, more problematic.  The state had filed a discovery request on May 2, 2006, and the defendant had answered it on June 5, 2006.  Last year in State v. Palmer, the Supreme Court had adopted the rule that the speedy trial time is tolled for the period that a defendant unreasonably fails to respond to discovery; in that case, the defendant had failed to respond for sixty days, the Court held a thirty-day response would've been timely, and thus charged defendant with everything after that.  It would certainly seem that, under Palmer, the defendant's response here was timely, and none of that period should have tolled the speedy trial time.

But Macalla relies on another 8th District decision, State v. Mitchell, to conclude that all of that time was chargeable to the defendant; that constitutes a tolling event under 2945.72(H), "a continuance granted other than on an accused's own motion."  As I mentioned back here when Mitchell first came down, I think this is bad law:  given that the speedy trial statute is to be strictly construed against the state, I don't see how you conclude that the time is tolled for a "continuance" when in fact no continuance was granted.

Speedy trial law involves enough fictions and logical fallacies, as I've addressed ad nauseam.  (Try this and this for a sampler.)  It doesn't need any more.

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