Barret J. BROWN, Appellant,
STATE of Alaska, Appellee.
David B. Loutrel, Anchorage, for the Appellant.
Joshua M. Kindred, Assistant District Attorney, Adrienne P. Bachman, District Attorney, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Barret J. Brown was convicted of misdemeanor driving while under the influence  and minor in possession. On appeal, he claims that the district court erred when it denied his motion to dismiss the charges because his right to a speedy trial under Alaska Criminal Rule 45 was violated. For the reasons explained here, we agree with Brown and reverse the judgment of the district court.
Facts and Proceedings
Sand Point is a rural community that does not have a sitting district or superior court judge. Consequently, Valdez District Court Judge Daniel Schally travels periodically to Sand Point to handle misdemeanor criminal cases. For at least three years Before January 2008, Sand Point's misdemeanor criminal trial weeks were calendared for every two months. In other words, Judge Schally would preside over criminal cases in Sand Point six times a year. In Brown's case, the trial weeks were calendared in June, August, October, December, and February.
On March 24, 2007, in Sand Point, Brown was charged with being a minor in possession of alcohol. A few days later, on March 30, based on the same incident, he was also charged with driving while under the influence. Judge Schally set the case for trial the week of June 4, 2007, in Sand Point. In April, Brown retained an attorney who, on April 17, requested that the case be continued until the October trial week. The motion was granted and the trial was continued until the week of October 8. This time was excluded from the Rule 45 calculation. Neither Brown nor the State requested any other continuances, nor did Brown agree to toll Rule 45 for any delay after the week of October 8.
At the October 4 trial call, both parties said they were ready for trial. But another trial was scheduled for that week, so Brown's case was set over to the week of December 3. At the November 27 trial call, the parties again said that they were ready for trial. But again there was another trial scheduled that had priority over Brown's. The same case that had been scheduled for October had been rescheduled for the December calendar because Judge Schally had been unable to empanel a jury in October.
Judge Schally acknowledged that Brown's case had a Rule 45 issue, but explained that under Wolfe v. State,  he believed the delay would be excluded because he would be unavailable to preside over Brown's trial until the next scheduled travel calendar. Brown objected to Judge Schally's suggestion that the time after the October trial calendar was excluded. But the other trial consumed the week of December 3, so Brown's case was set over for trial the week of February 4, 2008.
At the January 29, 2008 trial call, Brown moved to dismiss the case on Rule 45 grounds. Judge Schally denied the motion. He ruled that under Rule 45(d)(2), the delay in getting the case to trial was attributable to Brown's April 2007 request for a continuance.
Brown was convicted of the two charges. Brown now appeals, claiming that more than 120 non-excludable days had elapsed between the time he was charged and Before ...