dissenting. I must respectfully dissent. I disagree with the majority’s finding that Zangerl’s case was taken under advisement on July 11, 2000, the date the briefs were to be submitted to the trial court. I agree with the State’s contention that the entire period from August 10, 2000, until at least October 19, 2000, should be excluded.1
Rule 28.3(a) of the Arkansas Rules of Criminal Procedure provides, in part, that “[n]o pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.” At the pretrial conference on June 26, 2000, the following colloquy took place between defense counsel and the trial court:
Defense Counsel: . . . And I think [the motions] are of a variety that can be dealt with by the Court, based on the motions and perhaps briefs, but that we would not need an evidentiary hearing on those ....
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The Court: Why don’t we make briefs due, like, the eleventh. . . .
Clearly, the June 26 pretrial conference was not a hearing on the motions, and the motions were not submitted to the court for decision on that date, nor were the motions taken under advisement on that date. For whatever reason, Zangerl failed to file a brief on July 11.
The majority states that the issue is “when was the case taken under advisement.” The answer, according to the majority, is “the date that the judge asked for briefs, July 11, 2000.” By stating that the first day the motion was held under advisement is the date that the brief was due, the majority, in effect, condones Zangerl’s refusal to comply with the court’s order to submit his brief on July 11, 2000.
In Gwin v. State, 340 Ark. 302, 306, 9 S.W.3d 501 (2000), we held that the excluded period contemplated by Rule 28.3(a) “begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard hy the court and not more than thirty days thereafter.” (Emphasis added.) Zangerl made his pretrial motions on June 21, 2000. The motion was not heard by the court on July 11; rather, the briefs were due on July 11. It is obvious from the docket sheet that Zangerl’s brief had still not been received on October 19, 2000.
The majority states that we addressed a similar scenario in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000), where we stated:
For example, on July 15, 1996, Appellant filed a motion to suppress the custodial statements made by Appellant to his fellow inmates. On August 5, 1996, a continuance was granted upon agreement of the parties to obtain additional information from the lead police investigator that was pertinent to his pretrial motions. The suppression hearing was held on November 4, 1996. At the conclusion of the hearing, the trial court took the motion under advisement and requested briefs from both sides. No ruling was made within thirty days after the [suppression] hearing. The thirtieth day from the date of [the suppression] hearing was on December 3, 1996. Thus, under our holding in Gwin, the period of time from July 15 to December 3, 141 days, should be excluded from the calculation of speedy trial as a period of delay attributable to hearings on a pretrial motion.
Ferguson, 343 Ark. at 171 (emphasis added).
Ferguson, supra, is distinguishable from the present case. In the present case, there was no hearing on the merits of Zangerl’s pretrial motions prior to the trial court’s request on June 26 that briefs be submitted on July 11. The facts indicate that in Ferguson, supra, the trial court conducted a suppression hearing, where it addressed the merits of the motion, prior to the request for briefs. The majority indicates that the court addressed the “status” of the motions in the pretrial hearing held on June 26; however, the “status” hearing did not include a hearing on the merits of Zangerl’s motions.
The majority states that “we have no evidence before us that briefs were ever filed in this case.” Although the actual briefs are not included in the record, we do have evidence before us that briefs were filed. On April 6, 2001, prior to Zangerl’s trial on the merits, defense counsel acknowledged that he had filed a brief, stating:
Defense Counsel: . . . pB]riefs or authorities were directed to be supplied and in all being perfecdy candid with the Court, I do not know what date I supplied those - my authorities to the Court. Unfortunately, my transmittal letter to the Court which was prepared by myself and not by my secretary who does much better work, did not have a date.
Later, defense counsel argued that the continuance noted on the docket sheet on October 19, which stated that the case was reset at the defendant’s request, could not be charged against Zangerl because there was no record of a request by the defense. Defense counsel stated:
Defense Counsel: There is no Motion, there is no letter that was charged to the defense I guess administratively by the Court because it’s apparently attributable to the fact that Your Honor did not have my brief.
It is clear from the record that Zangerl did submit a brief. It is equally clear from the record that Zangerl’s attorney knew that he had been directed by the trial judge to submit a brief and that the trial judge was waiting on the brief before he decided the motion.
The majority is correct in stating that the issue is “when was the case taken under advisement.” The thirty-day rule in Rule 28.3 is not triggered until the motion is heard by the trial court and is submitted to the trial court for decision. In this case, there was neither a hearing on the merits of Zangerl’s motion nor was the case submitted to the trial court for decision prior to October 19, 2000. At the June 26, 2000, pretrial conference, the trial court requested briefs. It is clear that Zangerl’s motions were not submitted to the trial court for decision until the briefs were filed. A trial court cannot take a motion under advisement until the motion has been submitted for decision to the trial court. The docket entry on October 19, 2000, which stated that Zangerl’s brief had not been received, leaves no doubt that the trial court did not consider Zangerl’s motions submitted for decision as of that date. The trial could not proceed until Zangerl’s motions were decided.
The period from August 10, 2000, to October 19, 2000, a total of 70 days, should be excluded. When the period of 70 days is subtracted from the majority’s total of 432 days, the number of days which can be excluded is 362 days, an amount which is within the speedy-trial period.
The trial court’s denial of Zangerl’s motion to dismiss should be affirmed.
Glaze and Corbin, JJ., join this dissent.As the majority points out, Zangerl conceded the period from June 21, 2000, to August 10, 2000. The only time period at issue is the period between August 10, 2000, and October 19, 2000.