# State v. Brown > Supreme Court of Kansas · April 27, 2007 · 283 Kan. 658 URL: https://www.frixlaw.com/law-library/cases/9796723 ## Case - **Full name:** State of Kansas, Appellee, v. Michael J. Brown, Appellant - **Court:** Supreme Court of Kansas - **Decided:** April 27, 2007 - **Citations:** 283 Kan. 658; 157 P.3d 624; 2007 Kan. LEXIS 248 - **Precedential status:** Published - **Opinion:** Dissent by Beier - **Judges:** McFarland, Beier, Luckert, Lockett, Allegrucci, Nuss - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796723 ## Opinion text Beier, J., dissenting: I respectfully dissent from my colleagues’ ruling on the narrow speedy trial issue in this case. On the way to elaborating, I am compelled to address one of the cases cited by the majority for the following proposition: “We note there are cases in which delay due to a defense continuance was computed, blit the results are inconsistent because the question of when to begin counting was not at issue.” Slip op. at 8. The case is State v. Arrocha, 30 Kan. App. 2d 120 , 39 P.3d 101 , rev. denied 273 Kan. 1037 (2002). The majority’s cite to Arrocha is accompanied by a parenthetical saying, “date defense continuance was granted served as the starting point for computing the period of delay attributed to defendant.” Slip op. at 8. This is contrasted with two other Kansas cases computing time following a defense continuance differently. This reference to Arrocha , a decision I wrote while serving on the Court of Appeals, tells half the story. The passage to which the majority’s parenthetical evidently refers did assume when no explicit challenge was before the court that the dates on which defense continuances were sought or granted started the clock running against the defendant. Arrocha, 30 Kan. App. 2d at 124 . Another portion of the opinion, however, described how an earlier segment of time should be allocated between the State and the defense and specifically addressed a period analogous to the 19 days at issue in this case. That portion of the opinion stated: “The State briefly argues that Arrocha acquiesced to all of the delay between August 17 and October 30. This argument is not supported by the record. On August 17, 2000, Arrocha requested a jury trial setting. The State announced it *669 was ready for trial on September 18, but the defense was not. The court set the case for trial to begin on October 30, and the defense, the prosecution, and the court agreed that the defense would be assessed the time from September 18 to October 30. It is illogical to argue that the defense should also have been assessed the time from August 17 to September 18 when the State had sought the September 18 setting. The district court properly assessed the 32 days from August 17 to September 18 to the State.” (Emphasis added.) Arrocha, 30 Kan. App. 2d at 123 . I now believe I assumed too much in Arrocha when I took for granted that any request for or grant of a defense continuance necessarily started tire clock against the defendant immediately. The more nuanced approach of the passage quoted above appears to be correct. The governing language of the statute says that a defendant held in jail solely by reason of the crime charged for 90 days or more shall be discharged “unless the delay shall happen as a result of the application or fault of the defendant.” K.S.A. 2006 Supp. 22-3402(1). The only portion of the delay between August 1, 2003, and October 27, 2003, attributable to “the application or fault of’ Brown was die portion between the original trial date, August 20, and the first rescheduled trial date, October 27, i.e., 68 days. Just like the time between August 17 and September 18 in Arrocha , the 19 days between the court’s decision on Brown’s motion for continuance and the original trial date would have elapsed without Brown’s motion having been filed. Any delay represented by those days must be laid at the feet of the State, which bears the obligation to see that the defendant receives a timely trial. The opposite result is, as I said in Arrocha , illogical. It also contravenes the plain language of the controlling statute. The 19 days without trial between August 1 and August 20 were not “the result of the application or fault of’ Brown. K.S.A. 2006 Supp. 22-3402(1). The court had set the August 20 trial date long before Brown’s motion, and the “prosecution and the court are on the same team for speedy trial calculation purposes.” Arrocha, 30 Kan. App. 2d at 123 . Finally, even if I did not believe that the majority’s rule contravenes logic and law, I would dissent because it will provide a per *670 verse incentive to defendants and their counsel to resist filing a motion for continuance as soon as the need for it becomes apparent. The later in the process such a motion is filed, the more likely it is to cause schedule disruption and inconvenience for the prosecution, the defense, witnesses,' and the court. The later in the process such a motion is filed, the less likely it is to be granted, even if it is meritorious. Procedural rules such as those in K.S.A. 2006 Supp. 22-3402(1) should streamline and facilitate correct disposition of criminal cases, not complicate them or impair the reliability of their results. For all of the foregoing reasons, I would reverse the Court of Appeals and the district court and remand for entry of an order dismissing the prosecution and discharging defendant. Allegrucci and Nuss, JJ., join the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796723. Public record. Not legal advice.