Lovell Govan v. State of Arkansas

Cite as 2025 Ark. App. 143
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-490

Opinion Delivered March 5, 2025

LOVELL GOVAN APPEAL FROM THE UNION
APPELLANT COUNTY CIRCUIT COURT
[NO. 70CR-20-396]
V.
HONORABLE JIM F. ANDREWS,
STATE OF ARKANSAS JR., JUDGE
APPELLEE
REVERSED AND DISMISSED

BRANDON J. HARRISON, Judge

Lovell Govan was found guilty of eight felonies and now appeals, arguing that the

circuit court erred in denying his motion to dismiss on speedy-trial grounds. We agree that

Govan’s right to a speedy trial was violated, and we therefore reverse and dismiss the case.

Govan was arrested on 25 August 2020, and on 16 October 2020, the State filed an

information charging Govan with two counts of attempted capital murder, four counts of

kidnapping, and one count each of residential burglary, theft of property, terroristic

threatening, and aggravated assault. The State alleged that Govan had shot both Edwina

Howard and her daughter multiple times and held them hostage overnight before fleeing.

On 24 October 2023, Govan moved to dismiss all charges due to lack of a speedy

trial. He asserted that he had been incarcerated while waiting for trial and that while some

of that time had been properly excluded for speedy-trial purposes, 398 days had not and

should not be excluded.
1
After hearing arguments on the matter and accepting briefs from the parties, the

circuit court denied the motion. The case proceeded to trial, and a jury acquitted Govan

of the residential-burglary and aggravated-assault charges, found him guilty of the lesser-

included offense of first-degree battery in place of one of the attempted-capital-murder

charges, and found him guilty of the remaining charges. The court imposed an aggregate

term of thirty years’ imprisonment, and Govan has timely appealed.

The time for trial begins to run on the date of either the defendant’s arrest or service

of summons. Ark. R. Crim. P. 28.2(a). It continues to run uninterrupted except during

any applicable “excluded periods” set forth in Rule 28.3. The filing of a speedy-trial motion

tolls the running of the time for a speedy trial under our rules. Barefield v. State, 2021 Ark.

App. 151. If the defendant is not brought to trial within the requisite time, the defendant

is entitled to have the charges dismissed with an absolute bar to prosecution. State v.

Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008) (citing Ark. R. Crim. P. 30.1).

When a defendant makes a prima facie showing of a speedy-trial violation, the

burden shifts to the State to show that the delay was the result of the defendant’s conduct

or was otherwise justified. Crawford, supra. A prima facie case for a speedy-trial violation is

made when there is a period of delay beyond twelve months from the date of the charge.

Id. On appeal, we conduct a de novo review to determine whether specific periods of time

are excludable under speedy-trial rules. Id.

Here, because Govan was not brought to trial within twelve months of the date of

his arrest, he presented a prima facie case for a speedy-trial challenge; the burden of proving

2
that the extra days were legally justified and excludable now shifts to the State. See Crawford,

supra. The delay between his arrest, 25 August 2020, and the date his motion to dismiss was

filed, 24 October 2023, is 1,155 days; accordingly, the State bears the burden of showing

that at least 790 days should not be included in the calculation. Govan challenges five time

periods that the court excluded from his speedy-trial calculation.1

I. 15 December 2020 to 16 February 2021

On 6 January 2021, the circuit court entered an order for continuance “upon the

Motion of the Defendant” for the period from 15 December 2020 to 19 January 2021.2 On

12 February 2021, the court entered another continuance order for the period from 19

January 2021 to 16 February 2021.

At the speedy-trial hearing held on 26 October 2023, defense counsel acknowledged

that “December 15th until the February date on that order, that was ordered by the Court

on our motion to be excluded.” The circuit court’s order denying the motion to dismiss

reflected that the parties “concurred that this time period was a legally excludable period.”

On appeal, Govan asserts that “there was no file-marked motion or request [for the

continuance orders] in the record, nor were the orders signed by defense counsel.” He also

acknowledges that this time period was not contested below, but he now argues that given

1
Govan discusses five other time periods in his brief, but those time periods were
either not excluded or not contested.
2
All continuance orders discussed in this opinion are “boilerplate” orders that indicate
the order is upon the motion of the defendant and for good cause shown.

3
this court’s de novo review, these periods should not be excluded “due to the egregious

lack of a record in this case” and the State’s failure to show that these time periods were

properly excluded.3

In response, the State asserts that not only did Govan agree below that this period

was properly excluded, his trial counsel confirmed at the speedy-trial hearing that the

defense had moved for those continuances. Periods of delay resulting from continuances

granted at the request of the defendant or his counsel are excluded for speedy-trial purposes.

Ark. R. Crim. P. 28.3(c).

We hold that this 63-day time period was properly excluded from the speedy-trial

calculation because the continuances were granted at the request of the defendant.

II. 10 March 2021 to 14 June 2022

On 10 March 2021, Govan moved for a criminal responsibility examination (CRE)

and a fitness to proceed (FTP) examination, and the court ordered both examinations that

same day. The time between when a mental examination is ordered and when the report

is filed is excludable for speedy-trial computation. Perkins v. State, 2019 Ark. 247, 582

S.W.3d 1; Davis v. State, 375 Ark. 368, 291 S.W.3d 164 (2009).

3
Govan also argues several times in his brief that the parties’ “stipulation” below
should not be accepted as a substitute for the record. See Burrell v. State, 65 Ark. App. 272,
986 S.W.2d 141 (1999) (affirming circuit court’s denial of speedy-trial motion, even though
State conceded error, because appellate court is not bound by the State’s conclusion that
error occurred). We note that there are several times that the parties agreed a time period
should be excluded, but this is not the same as a “stipulation” substituting for the record.

4
On 21 July 2021, the court received a forensic evaluation from Arkansas State

Hospital (ASH); in that evaluation, Dr. Melissa Wright opined that Govan “possessed an

adequate understanding of the proceedings against him but lacked the ability to provide

effective and rational assistance to his attorney in his own defense.”

The court excluded the time periods of 20 July 2021 to 17 August 2021, 17 August

2021 to 19 October 2021, and 19 October 2021 to 16 November 2021 in continuance

orders at the defendant’s request. On 9 November 2021, the circuit court entered an order

committing Govan to the custody of the director of the Department of Human Services

due to unfitness to proceed.

On 27 April 2022, Monica Lopez, the records-intake supervisor at ASH, sent a letter

to the court informing it that Govan had completed his inpatient restoration and that Dr.

Sandra Michel’s “full report with all ordered forensic opinions will be forthcoming.”

Govan’s CRE and FTP reports were filed with the court on 14 June 2022.

The parties agreed below that this excludable time period began on March 10 but

disagreed on when the excludable time period ended. Govan argued that the time period

ended on 27 April 2022, when the court received the letter notifying it that Govan had

completed treatment. The State, on the other hand, asserted that the time period ended on

14 June 2022, when the CRE and FTP reports were filed with the court.

The circuit court found that the April 27 letter was not a full “report” as

contemplated by Ark. Code Ann. § 5-2-327(e)(1) (Repl. 2024) because it did not contain

certain findings and opinions required by the statute, such as a “substantiated diagnosis in

5
the terminology of the American Psychiatric Association’s most current edition of the

Diagnostic and Statistical Manual of Mental Disorders.” See Ark. Code Ann. § 5-2-

327(e)(1)(C). The court found that the CRE and FTP reports filed on June 14 did contain

the required information and that June 14 was consequently the end date for the excluded

period.

On appeal, Govan again asserts that the letter filed on April 27 showed that the

hospital had conducted all examinations, found no issues, and was returning him to Union

County for disposition. Therefore, he argues, the letter should be considered the “report”

pursuant to Ark. Code Ann. § 5-2-327(e) that triggers the end of the excluded period. He

admits that the April 27 letter does not meet the requirements of subsection (e) but asserts

that it was not his responsibility “to make the hospital file a compliant report.” He contends

that although the April 27 letter stated that a full report would be forthcoming, no such

report was filed until the defense requested it. He notes, “A defendant is not required to

bring himself to trial or ‘bang on the courthouse door’ to preserve his right to a speedy trial;

the burden is on the courts and prosecutors to see that trials are held in a timely fashion.”

Arnold v. State, 2011 Ark. App. 452, at 4. Therefore, he argues, the time from April 27 to

June 14 should not be excluded from the speedy-trial calculation.

The State responds with a new argument that the time period should end not on 14

June 2022 but on 20 December 2022, which is the date defense counsel conceded that

Govan was fit to proceed. The State contends that it is the circuit court that must make the

determination of fitness to proceed and end the tolling of the period for speedy-trial

6
purposes. See Ark. Code Ann. § 5-2-309(a) (Repl. 2024) (“If the defendant’s fitness to

proceed becomes an issue at any stage of the case, the issue of the defendant’s fitness to

proceed shall be determined by the court.”); Ark. Code Ann. § 5-2-310(a)(1)(A) & (c)(1)

(Repl. 2024) (“If the court determines that a defendant lacks fitness to proceed, the

proceeding against him or her shall be suspended. . . . On the court’s own motion or upon

application of the department, the prosecuting attorney, or the defendant, and after a hearing

if a hearing is requested, if the court determines that the defendant has regained fitness to

proceed, the criminal proceeding shall be resumed”).

The State explains that after the CRE and FTP reports were filed, the court did not

make any explicit finding on Govan’s competency to proceed. At an omnibus hearing on

20 December 2022, however, Govan’s counsel acknowledged that the state hospital had

reported that Govan was fit to proceed and stated, “We’re ready to move forward with

this.” The State contends that until counsel withdrew his challenge to Govan’s competency,

“the proceedings were still suspended because the circuit court had not explicitly found he

was fit to proceed.”

Alternatively, the State argues that the end date is 14 June 2022, when the CRE and

FTP reports were filed, and it denies that any delay in the hospital’s submitting the report

should be attributed to the State. See Jackson v. State, 2015 Ark. App. 603, at 4, 474 S.W.3d

525, 528 (because the state hospital is independent of the judiciary and the prosecuting

attorney’s office, delays caused by its operations would not be subject to the same level of

scrutiny as delays caused by the criminal justice system itself).

7
We hold that the end date for the excluded period is 14 June 2022 and that the 461-

day period from 10 March 2021 to 14 June 2022 was properly excluded from the speedy-

trial calculation. The law is clear that when tolling time for a mental evaluation, time is

excluded from the date the exam is ordered until the date the report is filed. Galvin v. State,

2021 Ark. App. 121, 618 S.W.3d 475; Perkins, supra; Davis, supra. Govan concedes that the

April 27 letter is not a “report” as contemplated by Ark. Code Ann. § 5-2-327(e) but argues

that because 48 days passed between the April 27 letter and the filing of the final report, that

delay should be held against the State. However, he cites no case law supporting that

statement, and according to Jackson, supra, delays caused by the state hospital are not subject

to the same level of scrutiny as delays caused by the criminal justice system.

Regarding the State’s argument that the end date should be 20 December 2022, we

note that the State does not cite any case law interpreting the statutes in the way it suggests,

and the authority that is cited does not support that interpretation. See Rychtarik v. State,

334 Ark. 492, 976 S.W.2d 374 (1998) (once a defendant withdraws a defense of mental

disease or defect, the question of his sanity is no longer at issue); Jackson, supra (excludable

time ended when defendant withdrew his motion for a mental evaluation); Harris v. State,

2011 Ark. App. 233 (unless a defendant requests written findings, a circuit court does not

have an affirmative duty to enter written findings that a defendant’s fitness has been restored

before resuming the criminal proceedings).

8
III. 17 January 2023 to 21 March 2023

On 24 January 2023, the circuit court continued the case from 17 January 2023 to

21 March 2023 at the defendant’s request. At the speedy-trial hearing, the court stated,

“[T]he State contends that the period of January 17th, 2023 to March 21st, 2023, that period

is excludable. The Defense concurs and the Court agrees.” In its order on the motion to

dismiss, the circuit court reiterated that the parties agreed on the start date and end date of

this period and that it is an excludable period.

On appeal, Govan again argues that there was no file-marked motion or request for

continuance in the record, nor was there any hearing where a continuance was discussed.

He acknowledges there was no objection below but asserts that given this court’s de novo

review, this period should not be excluded. The State notes that in addition to the defense

raising no objection, the order stated the continuance was at the request of the defense and

was approved and signed by defense counsel. Periods of delay resulting from continuances

granted at the request of the defendant or his counsel are excluded for speedy-trial purposes.

Ark. R. Crim. P. 28.3(c).

We hold that this 63-day time period was properly excluded from the speedy-trial

calculation because the continuance was granted at the request of the defendant, and defense

counsel did not challenge this time period at the speedy-trial hearing.

IV. 5 June 2023 to 5 September 2023

At an omnibus hearing on 21 March 2023, defense counsel stated he had a conflict

with the jury trial set on April 3 and that he “may be filing a motion to have a hearing on

9
the finding by the mental health professional.” Defense counsel asked to keep the case on

the trial calendar, however, and requested the next available date, which was June 5. The

court agreed and said, “So let’s continue with excluded period to trial date in June.” On

23 March 2023, the court entered a handwritten note on the docket that stated, “Mar 21 –

cont’d w/e.p. to trial date June 5, 2023. Def to propose omnibus hearing date.”

After the handwritten docket notation dated March 21, there are no record entries

regarding scheduling until 21 August 2023, when the circuit court issued a scheduling order

setting the jury trial for 30 October 2023. On 27 September 2023, however, the circuit

court entered a continuance order excluding 21 March 2023 to 5 September 2023.

Govan filed his motion to dismiss for lack of speedy trial on 24 October 2023, which

tolled the running of the speedy-trial clock. See Smith v. State, 2021 Ark. App. 253, 624

S.W.3d 718. The court convened a hearing on the motion on October 26. The defense

challenged the continuance order excluding the time period from 21 March 2023 to 5

September of 2023, arguing that “there should be at least a finding of some good cause,

because I don’t remember filing a motion or doing anything that would cause—or for asking

any continuance for March 21st or thereafter.”4

The State countered that “there are orders and docket entries that memorialize those

continuances and the excluded period,” and if the defense wants to challenge the orders he

must “present evidence as to the invalidity of those orders; but otherwise, they are filed of

4
The parties later agreed, however, that the time period at issue was June 5 to
September 5.

10
record, they are the record in this case, [and] the State was entitled to rely on that record.”

The defense disagreed, asserting that “the burden is not on us to prove there was no good

cause. The burden is on the State to prove that there was good cause for the delay.” The

defense continued to argue that “if that order is not based on something supported under

[Rule] 28.3, then it should not be in an excluded period.” The State remarked that there

was another trial taking place in early June and that “may have been the reason why it was

continued to September.”

After taking time to review the case, the circuit court reconvened the speedy-trial

hearing on October 27 and confirmed that it did have another trial on 5 June 2023. The

prosecutor concurred that the trial of Marshay Wayne was held on June 5 and that “[a]fter

the Marshay Wayne case concluded, there [was] nothing setting Mr. Govan for June 6th or

June 20th or any of [its] subsequent court dates that we had in the interim.” On June 9 and

July 6, the prosecutor asked the trial court assistant about setting a date for Govan’s trial but

did not get a response. The prosecutor inquired again on August 21 and was told Govan’s

trial was set for October 30–31. The State speculated that the trial court assistant had

overlooked putting Govan’s trial back on the trial calendar. The prosecutor also noted,

however, in reference to the June date, that the court had two other cases set for trial that

month, and the court had remarked, “[W]e have been on a congested docket for a while.”

The prosecutor also said,

And can I also add that the continuance from June 5th to September
5th would be proper since the Wayne trial was originally set and scheduled
for two days, and then with this case possibly being a two-day trial, but we
wanted a three-day trial time on the 5th, 6th, and 7th. And so, that’s the

11
reason the State submits the excluded period is proper from June the 5th to
September the 5th. . . . Because the congestion of the docket, you couldn’t
do two, two-day trials with a three-day term. And there was also another case
set for trial that same week.

The prosecutor also noted that one of the other cases involved FBI and DEA agents who

were subpoenaed for particular dates, making it more problematic to reschedule that trial.

The circuit court observed that the supreme court has held that a crowded docket is

not an acceptable excuse for denying a speedy trial absent exceptional circumstances.

However, the court also noted that there was still discovery going on in Govan’s case as late

as the week before the speedy-trial hearing. The court also recalled that it and defense

counsel had “happened upon each other at the courthouse approximately two weeks ago,”

and defense counsel said that he “still had some doubts” about Govan’s fitness to proceed.

The prosecutor also noted that the situation presented an exceptional circumstance in that

the court “inherited this long, unattended docket.” The prosecutor stated,

This Court is hamstrung in trying to get things moving along, but we
are making the best effort that we can, but at the same time, we have to rely
on this Court’s docket, this Court’s records, this Court’s order in the matter
in which we move forward with cases. If the Court determines, as it did in
September, that an order of continuance with excluded period was proper,
we rely on that.

In addition, defense counsel acknowledged he had no objection to that continuance when

the order was entered.

In its written order denying the motion to dismiss, the circuit court made the

following findings.

This Court notes that the filing date of said continuance order was
September 11, 2023 and this Court had a criminal docket on September 20,

12
2023 wherein this matter was called and the defense counsel did not object to
this Court’s continuance order filed nine days earlier. At that same docket
call, this Court again continued this matter with an excludable period and the
defense counsel did not object to the new continuance period (defense
counsel’s first objection was in its motion filed of record on October 24,
2023). The general reasons for these continuances were the common and
continuing questions of the Defendant’s mental fitness to proceed.

This Court concedes that the record surrounding the June 5, 2023 –
September 5, 2023 continuance period could have been better, but also asserts
that the mental fitness of the Defendant remained in play by and through the
defense counsel. Attached as Exhibit 2 to this Order is a copy of email
correspondence between this Court, the prosecution, and the defense counsel
in early October wherein the defense counsel questioned the mental
evaluations of his client and stated he may ask for another mental evaluation
of his client. None of the parties involved in this matter desires to see a
mentally unfit defendant subjected to a criminal trial. Also evidenced in said
email was a statement from the Deputy Prosecutor, Carla Gibson, that she
had recently acquired more discovery relevant to the trial of this matter.
Accordingly, discovery was still ongoing at the time of the continuance
period.

....

As this case has had a byzantine history, and as discovery was
continuing at the time of the disputed excluded period of June 5, 2023 –
September 5, 2023, and defense counsel continued to put the Defendant’s
mental fitness into question during the disputed excluded period and did not
object to the excluded period until six days before trial, this Court finds good
cause under Ark. R. Crim. P. Rule 28.3(h) for the excluded period.

On appeal, Govan argues that the time period from 5 June 2023 to 5 September

2023 should not be excluded because the only basis for the continuance was docket

congestion, and the case had not been rescheduled for the next available date. The

congestion of the trial docket alone is not just cause for breaching the speedy-trial rule.

Moody v. Ark. Cnty. Cir. Ct., 350 Ark. 176, 85 S.W.3d 534 (2002).

13
In addition, he contends, the continuance order did not comply with the

requirements of Ark. R. Crim. P. 28.3(b)(1), which provides that the period of delay

resulting from a continuance attributable to congestion of the trial docket shall be excluded

if, in a written order or docket entry at the time the continuance is granted, the court (1)

explains with particularity the reasons the trial docket does not permit trial on the date

originally scheduled; (2) determines that the delay will not prejudice the defendant; and (3)

schedules the trial on the next available date permitted by the trial docket.

Govan discusses several cases in support of his argument. First, in Parker v. State,

2023 Ark. 41, 660 S.W.3d 815, the defendant challenged an order entered sua sponte on 4

December 2019 that retroactively tolled speedy trial from 18 October 2019 until a jury trial

date that had yet to be determined. The court listed several reasons for this delay, including

a congested docket and the complexity of scheduling a three-week trial with only one

courtroom equipped for jury trials and with the necessary electronic equipment. The

supreme court observed that “[n]o contemporaneous docket entry, written order, or pretrial

colloquy reflected that any portion of the time from October 18, 2019, to December 4,

2019, had been tolled, and the court had not yet held an on-the-record hearing discussing

these matters.” Id. at 4, 660 S.W.3d at 820.

Parker later challenged the entry of this order in a motion to dismiss for lack of a

speedy trial. Parker’s trial counsel argued that he never agreed to the sua sponte December

4 order and that certain periods were not excludable pursuant to Rule 28. The circuit court

denied the speedy-trial motion, noting that there had been “an off-the-record discussion in

14
chambers” and that Parker’s trial co-counsel had been present for the in-chambers

discussion. Id. at 5, 660 S.W.3d at 820.

On appeal, Parker argued that speedy trial was improperly tolled and that the circuit

court could not retroactively toll speedy trial for docket congestion. The supreme court

agreed that speedy trial can be tolled for docket congestion only if the court enters an order

“at the time the continuance is granted.” Ark. R. Crim. P. 28.3(b). Thus, the circuit

court’s order could not have retroactively tolled speedy trial for docket congestion. The

supreme court also held that neither the three weeks requested for trial by the State nor the

appointment of a new prosecutor in June 2019 was a sufficient basis on which to toll speedy

trial for “other good cause.” Id. at 18, 660 S.W.3d at 827. And finally, the supreme court

noted that while the circuit court found good cause under Rule 28.3(h) to toll speedy trial,

it did not prioritize the trial by setting a new trial date but merely stated that speedy trial

was tolled until “these matters can be brought forth for trial[.]” Id. at 15–16, 660 S.W.3d

at 826. The supreme court concluded that the time period from 18 October 2019 to an

indefinite period of time was not excluded from the speedy-trial calculation.

Next, in Robertson v. State, 2019 Ark. App. 73, 568 S.W.3d 323, the defendant had

a trial set for Monday, 23 October 2017, but on that day, the circuit court entered an order

continuing the trial until 20 March 2018 and excluding the time for speedy-trial purposes.

The court’s order stated that another case was scheduled to begin on 23 October 2017 and

was expected to take five days to complete. The order noted that it was distributed to

Robertson’s counsel.

15
Robertson filed a motion to dismiss on speedy-trial grounds on 28 February 2018.

He argued that the time period from 23 October 2017 to 28 February 2018 should not be

excluded because both the order and the docket entry failed to satisfy the requirements for

exclusion found in Ark. R. Crim. P. 28.3(b). The State asserted that Robertson’s argument

was not preserved because he had not made a contemporaneous objection to the exclusion

of the time for speedy-trial purposes. The contemporaneous-objection rule provides that a

contemporaneous objection to the excluded period is necessary to preserve the argument in

a subsequent speedy-trial motion if defense counsel is present at the hearing and has an

opportunity to object. Bowen v. State, 73 Ark. App. 240, 42 S.W.3d 579 (2001).

At the hearing on Robertson’s speedy-trial motion, it was adduced that there was a

possibility that the court had “cleared calendars” with staff at Robertson’s counsel’s office,

and the State argued that this “clearing calendars” had given Robertson an opportunity to

object. Id. at 5–6, 568 S.W.3d at 326. This court disagreed, however, considering that

there was no record of the alleged phone conversation between the court and counsel’s

office. We held that it was “not readily apparent that Robertson had an opportunity to

make a contemporaneous objection.” Id. at 6, 568 S.W.3d at 326. Further, even if the 20

March 2018 date had been cleared as the first available date for Robertson’s counsel, the

court’s October 23 order did not meet the requirements set forth in Ark. R. Crim. P.

28.3(b). Id. at 5, 568 S.W.3d at 325–26. This court held that the time period should not

have been excluded and reversed and dismissed for violation of Robertson’s right to a speedy

trial.

16
Finally, in Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996), the circuit court sua

sponte at a pretrial hearing reset Tanner’s trial from 13 December 1994 to 15 February 1995.

The record did not indicate that Turner or his counsel was present at the hearing. On

December 14, the circuit court entered an order excluding the period between the original

and new trial dates because the “trial set for 12/13/94 had to be rescheduled due to

commencement of capital murder trial of Frederick Jacobs, Drew [County] . . . on 12/13–

16/94.” Id. at 39, 918 S.W.2d at 167. The order indicated the prosecution and defense

were notified by mail.

Two days before the February trial date, Tanner requested a continuance, and the

trial was rescheduled for 21 March 1995. The day before the March trial date, Tanner made

an oral motion to dismiss for lack of a speedy trial and argued that the court had erred in

excluding the period of 13 December 1994 to 15 February 1995 from speedy-trial

computation because the law allows exclusion for docket congestion only in exceptional

circumstances. The circuit court denied the motion, essentially finding that Tanner had

waited too long to contest the 14 December 1994 order.

On appeal, the supreme court stated that while the circuit court apparently wished

to try the Drew County murder case on a date originally scheduled for Desha County trials

such as Tanner’s, the fact that a murder trial is pending in an adjacent county does not,

without more, constitute an exceptional circumstance. The supreme court explained,

We realize that trial courts may, for a variety of reasons, wish to give
priority to pending murder cases. However, when that desire infringes on
another defendant’s constitutional right to a speedy trial, and on our Rules of
Criminal Procedure, it must yield, unless there are exceptional circumstances.

17
In those situations, the trial court must note the exceptional circumstances in
its order continuing the case. Ark. R. Crim. P. Rule 28.3(b). We hold that
the commencement of a capital murder trial on the appellant’s scheduled trial
date, does not, standing alone, constitute an exceptional circumstance
justifying exclusion of time for docket congestion. Likewise, in the absence
of any explanation other than that the court preferred to try another case, we
hold that the time period in question cannot be excluded for “good cause”
pursuant to Rule 28.3(h).

Id. at 41–42, 918 S.W.2d at 169.

The supreme court also held that Tanner had not waived his right to move for

dismissal based on a speedy-trial violation. His motion to dismiss was made before trial, and

“under the circumstances of this case, he was not required to challenge the court-ordered

exclusion of time immediately upon issuance of the court’s order.” Id. at 42, 918 S.W.2d

at 169.

Govan asserts that in this case, the State chose to take another case to trial the week

of June 5, so his case was taken off the trial docket due to docket congestion but was not

rescheduled until an order entered in August setting the trial for October 30. The

continuance order that excluded June 5 to September 5 was not entered until September

27 and did not meet any of the requirements of Ark. R. Crim. P. 28.3(b). Like Parker, it

was not entered contemporaneously, and it was also insufficient on its face because it did

not contain any explanation for why the trial docket did not permit trial on the date

originally scheduled, contained no determination on prejudice to the defendant due to the

delay, and did not schedule Govan’s case for the next available date.

Govan also asserts that while the State chose to try Marshay Wayne the week of 5

June 2023, Govan’s case was older, and he had remained in custody for the entirety of his

18
case, so his case should have taken priority. Again, there is nothing in the record that shows

the circuit court considered the prejudice to Govan when the continuance was granted, nor

was his case rescheduled for the next available date, which, according to the parties, was

June 20. Govan reiterates that the only basis for the continuance was docket congestion,

and this basis alone is not sufficient to toll speedy trial. See Parker, supra; Tanner, supra.

Finally, Govan argues that he properly preserved his argument despite not making a

contemporaneous objection. Similar to Robinson, there is nothing in the record to indicate

there was a hearing wherein he could have objected when the case was continued on June

5. Presumably the September 27 continuance order was distributed to the parties, but there

was no hearing on that date, either. Thus, he concludes that his objection was timely raised

in his motion to dismiss, and the time period from 5 June 2023 to 5 September 2023 should

not be excluded from the speedy-trial calculation.

The State counters that the circuit court’s determination that this period was

excluded for speedy-trial purposes was based on good cause, not docket congestion. It

explains that on 6 October 2023, defense counsel emailed the circuit court stating, “I need

to speak one more time with Mr. Govan. His mental evaluations have some issues and I

may be compelled to ask for another evaluation as I have heard from the jail that he may be

declining mentally.” The State contends that this shows that defense counsel was still

questioning Govan’s competency to stand trial as of early October 2023. The State also

notes the circuit court’s remarks at the speedy-trial hearing in which the court described

running into defense counsel in the courthouse approximately two weeks earlier

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(approximately October 10), and defense counsel said that he still had some doubts about

Govan’s mental fitness. The State asserts that it was only at the speedy-trial hearing that

defense counsel confirmed that Govan was fit to proceed. Defense counsel also indicated

that discovery had been ongoing through the previous week.

In its order denying the motion to dismiss, the circuit court found good cause to

exclude this period due to both defense counsel’s continued questioning of Govan’s

competency to stand trial and ongoing discovery. The State argues that the circuit court

was correct in doing so because defense counsel’s continued representation that he was

reviewing his client’s mental evaluations and considering challenging those evaluations

constituted good cause. As the circuit court noted, “None of the parties involved in this

matter desires to see a mentally unfit defendant subjected to a criminal trial.” Finally, the

State also asserts that Govan has not challenged the finding of good cause on appeal; instead,

he focuses his argument on docket congestion.

In reply, Govan challenges the circuit court’s finding of good cause due to ongoing

questions about his fitness. He argues that there is nothing in the record to show that

ongoing questions about his fitness were raised or considered on or around June 5, when

his case was removed from the docket. Second, at the 21 March 2023 hearing, the defense

had specifically requested that the case remain set for trial on 5 June 2023. He notes that it

has long been held that criminal defendants are presumed competent to stand trial and that

they have the burden of proving they are not. Hampton v. State, 2020 Ark. 344, 609 S.W.3d

20
393. Govan contends that without any actual request from him, the circuit court had no

reason to continue his case on June 5 other than docket congestion.

Govan denies that the circuit court excluded this time based on good cause so that

the defense could decide whether to challenge the original fitness evaluations. He claims

that good cause was used after the fact as a retroactive justification to avoid the fact that the

circuit court failed to enter an adequate contemporaneous order when the case was

continued on 5 June 2023. He concludes that because there was no contemporaneous

hearing or order when the continuance was granted, his argument is properly preserved.

As a reminder, the circuit court found good cause for the exclusion of 5 June 2023

to 5 September 2023 for the following reasons: (1) the complex history of the case, (2)

ongoing discovery during the disputed time period, (3) defense counsel’s continued doubts

and concerns about Govan’s mental fitness, and (4) Govan’s failure to object to the excluded

period until six days before trial in his motion to dismiss.

First, we disagree that Govan’s challenge to this time period was untimely. The

circuit court cited Dean v. State, 339 Ark. 105, 110, 3 S.W.3d 328, 332 (1999), and stated,

“[T]he time to object was at the time the trial court made its ruling, not in the subsequent

speedy trial motion.” However, as explained above, the contemporaneous-objection rule

provides that a contemporaneous objection to the excluded period is necessary to preserve

the argument in a subsequent speedy-trial motion if defense counsel is present at the hearing

and has an opportunity to object. Bowen, supra.

21
Here, the circuit court found that the continuance order was entered on 11

September 2023, and at a criminal-docket hearing on 20 September 2023, “defense counsel

did not object to this Court’s continuance order filed nine days earlier.” The circuit court

is mistaken—the court signed the order on September 11, but it was not filed until

September 27. Thus, at the September 20 hearing, defense counsel may well have been

unaware of the continuance. We hold that, similar to the situation in Robertson, it is not

readily apparent that Govan had an opportunity to make a contemporaneous objection. We

also note that Govan’s motion to dismiss was made before trial, and we hold that under the

circumstances of this case, he was not required to challenge the court-ordered exclusion of

time immediately upon issuance of the court’s order.

Next, we also disagree that good cause can be found because Govan’s mental fitness

“remained in play by and through the defense counsel.” As noted above, at an omnibus

hearing on 20 December 2022, Govan’s counsel acknowledged that the state hospital had

reported that Govan was fit to proceed and stated, “We’re ready to move forward with

this.” The next relevant event was the omnibus hearing on 21 March 2023, at which

defense counsel asked for a continuance from April to June because he had a scheduling

conflict. Defense counsel also stated that he “may be filing a motion to have a hearing on

the finding by the mental health professional who said that at the time of the offense that he

was able to know right from wrong.” However, in response to the court’s concern that the

case could not proceed until fitness questions are resolved, counsel said, “Technically, it’s

resolved. . . . I need to talk to that lady and find out how she came to that conclusion. . . .

22
After I talk to her, I will probably either file a motion or we will just keep it on the trial

calendar.”

The record is clear that the defense did not file a motion for a hearing on the mental-

health finding, or any other motion for that matter, before the scheduled trial date of June

5. In fact, the next motion filed by Govan was his speedy-trial motion on October 24. In

its order, the circuit court cited an email exchange in October to show that defense counsel

was still questioning the mental evaluation of his client. The State also cites an email

exchange in October, as well as the court’s ex parte conversation with defense counsel in

October, to show that defense counsel was still questioning Govan’s competency to stand

trial. However, emails or conversations in October do not demonstrate that defense counsel

was questioning the mental capacity of his client to such a degree on or around June 5 that

the court felt compelled to enter a continuance order on that basis and reschedule the June

5 trial date.

On the issue of ongoing discovery, the record is silent as to any discovery issues

around the June 5 trial date. At the 19 September 2023 omnibus hearing, the court asked

whether discovery was complete, and the defense counsel responded, “I believe it is, Your

Honor.” At the speedy-trial hearing, the court asked when discovery was complete in this

case, and defense counsel said,

Honestly, I would like to look through their file more. There is still some
stuff. I am not sure that I have seen all of it, but I would say it was at least
complete last week. . . . I don’t anticipate that there is any—I would always
like more time to look over the State’s file. . . . I believe that I have got
everything that is in [their] file.

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Defense counsel later acknowledged that he had viewed new discovery the week before

(approximately October 20), and according to the State, they received that discovery at the

end of September. Defense counsel objected to the introduction of this discovery “because

it wasn’t available originally when this was set for trial.”

In its order denying the motion to dismiss, the circuit court referenced an email dated

10 October 2023 from the prosecutor to the court and defense counsel in which the

prosecutor stated, “And UCSO [Union County Sheriff’s Office] just brought me some

(more) discovery.” Thus, the court found that “discovery was still ongoing at the time of

the continuance period.” In its appellate brief, the State also references emails from October

2023 to establish good cause due to ongoing discovery.

Govan responds that the State’s position ignores that the circuit court’s stated

reasoning for good cause occurred well after the June 5 trial date and is not supported by

the record. There is nothing in the record indicating good cause due to ongoing discovery

as a basis for continuing the trial on June 5. In fact, the record shows that Govan’s case was

continued—without any notice, hearing, or contemporaneous order—so the State could

try another case first.

We hold that the record does not support the court’s finding that ongoing discovery

necessitated a continuance of Govan’s case from June to September. Again, emails or

statements from October 2023 cannot show that discovery issues existed in June 2023.

Whatever additional discovery had come to light in September or October is of no moment

as it would have been unavailable to the State and the defense at the time of trial in June.

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This leaves us with whether the “complex history” of this case can support a finding

of good cause. As explained above, the prosecutor argued at the speedy-trial hearing that

the court was in an exceptional circumstance because it inherited a “long, unattended

docket.” Also at the speedy-trial hearing, the circuit court remarked, “I think we are all

aware of the shortcomings of my predecessor and what brought me here. I will say that it

has been a challenge just trying to straighten a number of things out. . . . I have got a lot

backed up on criminal.” The circuit court’s order on the motion to dismiss noted that

“this matter has involved four separate defense counsels, three separate judges, a pandemic,

and delays due to the questions of the mental fitness of the Defendant.”

In his brief, Govan explains that the record deficiencies in this case are largely “due

to the former trial judge’s policy of continuing cases based on informal communications

with the attorneys without putting anything on the record. This trial judge is no longer on

the bench, resigning after being suspended for a year.” There had also been legal charges

against the Union County Circuit Clerk, which exacerbated the problematic record

keeping.

We are not convinced that the particular circumstances surrounding the circuit

court’s docket provide good cause for a continuance from June 5 to September 5. The

court may well be dealing with a backlog of cases, but there is no indication in the record

that a backlog was the reason a continuance was needed. In addition, the record suggests

that Govan’s case had been pending longer than the other criminal cases scheduled for trial

in June. At the 21 March 2023 omnibus hearing at which the parties confirmed the June 5

25
trial date, the court asked how long the State expected the trial to last, and the prosecutor

stated,

Well, the other two cases that were set—I guess if we are going by the
oldest case first, this one. I anticipate at least four days. . . . Which will
probably knock out the two murder cases that were set for trial if this one
goes, but I think four days. . . . We might be able to do this one in less than
four days.

The court suggested it might “petition to the Supreme Court to have another Judge

assigned, so we can run concurrent trials so that we can get these trials knocked out.”

Clearly that did not happen, and somewhere along the way, it was decided that

Govan’s case would be continued and a different criminal case would proceed to trial on

June 5. There is no contemporaneous order explaining the reason for the continuance, and

the order that was finally entered on September 27 formally granting the continuance also

offers no explanation.

This situation is similar to Parker, supra, in which the circuit court had retroactively

tolled speedy trial, and “[n]o contemporaneous docket entry, written order, or pretrial

colloquy reflected that any portion of the time . . . had been tolled, and the court had not

yet held an on-the-record hearing discussing these matters.” 2023 Ark. 41, at 4, 660 S.W.3d

at 820. On appeal, in addition to holding that the circuit court could not retroactively toll

speedy trial for docket congestion, the supreme court also held that neither the three weeks

requested for trial by the State nor the appointment of a new prosecutor in June 2019 was

a sufficient basis on which to toll speedy trial for “other good cause.” Id. at 15–17, 660

S.W.3d at 826–27.

26
This case is also similar to Tanner, supra, in which the circuit court sua sponte

rescheduled Tanner’s trial due to the commencement of a capital-murder trial in a

neighboring county. On appeal, the supreme court held that the fact that a murder trial is

pending in an adjacent county does not, without more, constitute an exceptional

circumstance for speedy-trial purposes, and if there are exceptional circumstances, the circuit

court must note the exceptional circumstances in its order continuing the case. And, in the

absence of any explanation other than that the court preferred to try another case, the time

period in question cannot be excluded for “good cause” pursuant to Rule 28.3(h). 324

Ark. at 42, 918 S.W.2d at 169.

We hold that this time period cannot be excluded for good cause on the basis of

other criminal trials taking place, i.e., docket congestion, because the case law is clear that

the circuit court cannot retroactively toll speedy trial for docket congestion. Parker, supra.

There is also no record of any other exceptional circumstances that provide a sufficient basis

on which to toll speedy trial for good cause. Accordingly, we hold that this 92-day period

was improperly excluded and should be charged to the State.

V. 5 September 2023 to 19 September 2023
19 September 2023 to 17 October 2023
17 October 2023 to 24 October 2023

A handwritten docket notation dated September 5 stated that Govan’s case was

continued to 19 September 2023. At an omnibus hearing on September 19, defense counsel

confirmed that the trial was set for October 30 and asked for a hearing on October 17 “[j]ust

in case something comes up.” A handwritten docket notation dated September 19 stated,

27
“cont’d to Oct 17 w/e.p.” The court entered a continuance order on September 27 that

excluded the time period from 5 September 2023 to 19 September 2023. Two days later,

on September 29, the court entered a continuance order excluding the time period from 19

September 2023 to 17 October 2023. As noted above, Govan’s motion to dismiss on

speedy-trial grounds was filed on 24 October 2023. On 26 October 2023, the circuit court

entered a continuance order excluding the time from 17 October 2023 to 30 October 2023.

At the speedy-trial hearing, defense counsel stipulated that the time period from

September 5 to the trial date (at that time scheduled for October 30) should be excluded.

The court’s order denying the motion to dismiss found “no disputed excluded periods from

September 5, 2023 up to the date of this Order,” which was entered 22 November 2023.

On appeal, Govan does not argue that the time period from September 5 to

September 19 should not be excluded. For the time periods of September 19 to October

17 and October 17 to October 24, however, he asserts that there is no file-marked motion

or request for a continuance from the defense in the record and that given this court’s de

novo review, we should exclude these time periods for lack of a record showing why the

case was continued.

The State counters that Govan did not contest these excluded time periods at the

speedy-trial hearing, so his argument is not preserved. See Burns v. State, 2024 Ark. App.

329, 690 S.W.3d 133 (argument that time period should not have been excluded was not

preserved when appellant failed to challenge the exclusion at the hearing on the motion to

dismiss).

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We agree that Govan did not contest these time periods at the speedy-trial hearing

and instead stipulated that the 46-day time period from September 5 to the trial date (at that

time scheduled for October 30 but cut short by the motion to dismiss filed on October 24)

should be excluded.

VI. Conclusion

In sum, from 25 August 2020, the date of Govan’s arrest, to 24 October 2023, when

he filed his motion to dismiss for lack of speedy trial, Govan was held for a total of 428 days

during which speedy trial was not tolled. This 428-day total exceeds the requisite 365-day

period. See Ark. R. Crim. P. 28.1(b). Therefore, based on our de novo review, we hold

that the State has failed to demonstrate that Govan was brought to trial within the twelve-

month period required by Rule 28. Accordingly, we vacate Govan’s convictions and

dismiss the case.

Reversed and dismissed.

TUCKER and THYER, JJ., agree.

Law Offices of John Wesley Hall, by: Samantha J. Carpenter, for appellant.

Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.

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