State v. Tillmon (CA1 9/15/09)

Courts and lawyers have trouble counting, as this criminal case points out.

Tillmon was accused of various drug violations. His trial was set for October 3. On September 13 he filed a Motion to Dismiss, arguing racial profiling. The trial judge denied it because it had not been made “more than twenty days prior to the trial date.” The rule (Criminal 16.1(b)) requires that the motion be made “no later than twenty days prior to trial.”  Convicted at trial, he appealed the denial of his motion.

The Court of Appeals had to figure out how far September 13 is from October 3. Relying largely on civil rule and precedent, it pointed out that you count backward from the trial date, which is not included in the calculation, to the twentieth day, which is. It is not true that you have to have twenty days in between the motion and the trial, i.e., twenty “clear days.” But some earlier criminal cases had apparently made this mistake or been sloppy about it.

Tillmon’s motion was timely. But the Court of Appeals “conditionally affirmed” his conviction. He had also argued on appeal that there wasn’t enough evidence to convict him. The court said that there was, so his conviction would be affirmed unless the trial court decided on remand to grant the dismissal motion.

You don’t count the first day, you count the last day, and both the statute (A.R.S. 1-243) and the rule (6(a)) say so. Many civil lawyers have apparently never read either and have only the same hazy memory this trial court did about whether a given rule says “more than,” “no less than,” etc. But the real moral is that if you wait until the last minute you take your chances – or, rather, you make your client take chances he shouldn’t have to. Lawyers who wait until the last minute – and then try to get a continuance or some excuse to go beyond that limit – invite this sort of problem but a lot of people nowadays think that’s the way law is practiced.