from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
A. Davison, Assistant State's Attorney, Burleigh County
Courthouse, for plaintiff and appellee; submitted on brief.
J. Glass, for defendant and appellant; submitted on brief.
1] Steven Gibson appeals from a criminal judgment entered
upon his conditional guilty plea after the district court
rejected his claim that the State violated his right to a
speedy trial. The issue is whether the ninety-day period
under N.D.C.C. § 29-19-02 began when Gibson gave his
speedy trial request to the prison for mailing or whether it
began when the district court and the state's attorney
received Gibson's request. We affirm, concluding that the
ninety-day period under N.D.C.C. § 29-19-02 began when
the district court and the state's attorney received
Gibson's request for a speedy trial and thus that
Gibson's trial was scheduled within ninety days.
2] While incarcerated, Gibson asked his wife through emails
and recorded phone calls to sexually molest their
fourteen-month-old child for his own immediate gratification
and for his stated purpose to "[g]et her used to
it." The North Dakota Department of Corrections
discovered this correspondence, and the State subsequently
charged Gibson with two counts relating to the sexual abuse
of his child.
3] On October 2, 2015, Gibson submitted a speedy trial
request to the Department of Corrections and Rehabilitation.
On October 13, the Department mailed Gibson's request to
the district court and the state's attorney. The district
court received the request on October 15, and the state's
attorney received it on October 16. The district court
scheduled a trial for January 6, 2016, ninety-six days after
Gibson submitted his request to the Department and eighty-two
days after the district court and state's attorney had
each received it.
4] On January 4, Gibson moved the district court to dismiss
his charges, arguing the State had violated his right to a
speedy trial. He argued that the ninety-day time for the
district court to begin his trial began running when he
submitted his request to the Department. The district court
denied Gibson's motion, concluding the State had not
violated his right to a speedy trial. Gibson entered a
conditional plea of guilty, reserving the right to appeal his
speedy trial claim. On appeal, he argues the district court
should have scheduled his trial to begin within ninety days
of his having submitted his documents to the Department, not
within ninety days of the district court and the state's
attorney having received them.
5] Gibson claims his speedy trial right was violated when a
trial had not begun within 90 days after he submitted his
request to the Department for mailing. The issue on appeal is
the meaning of the term "elects" in N.D.C.C. §
29-19-02, a question of law we review de novo. State v.
Gasal, 2015 ND 43, ¶ 6, 859 N.W.2d 914. In criminal
cases involving felony offenses under section 19-03.1-23
(controlled substances offenses) or under chapter 12.1-20
(sex offenses), the speedy trial right "is for the trial
to begin within ninety days of the date the party elects this
right." N.D.C.C. § 29-19-02. Gibson argues that he
"elected" his speedy trial right when he gave the
request to the Department. The State argues that Gibson
"elected" his right effective when it was received
by the court and state's attorney. In this matter of
first impression, we construe this section consistent with
the Interstate Agreement on Detainers and the Uniform
Mandatory Disposition of Detainers Act and conclude that a
defendant "elects" his right when the district
court and the prosecutor receive the party's request.
See State v. Ripley, 548 N.W.2d 24, 27 (N.D. 1996)
(holding that under the Uniform Mandatory Disposition of
Detainers Act, the ninety-day period begins to run when the
district court and prosecuting official receive the
defendant's request); see also State v. Moe,
1998 ND 137, ¶ 16, 581 N.W.2d 468 (holding that under
North Dakota's Interstate Agreement on Detainers, the
ninety-day period begins to run when the state's attorney
receives the defendant's request).
6] The State did not violate Gibson's right to a speedy
trial under N.D.C.C. § 29-19-02, because the district
court scheduled his trial to begin within ninety days of the
court and the state's attorney having received his
request. The parties agree that the district court received
his request on October 15 and the state's attorney
received it on October 16. The jury trial was set for January
6, 2016, eighty-two days after October 16, 2015, and
ninety-six days after Gibson submitted his request. Because
the starting date under § ...