Jospeh Gilbert v. State of Arkansas

Cite as 2025 Ark. App. 345
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-24-336

JOSPEH GILBERT Opinion Delivered June 4, 2025
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CR-19-50]

STATE OF ARKANSAS HONORABLE ALEX GUYNN, JUDGE
APPELLEE
REVERSED AND DISMISSED

RAYMOND R. ABRAMSON, Judge

Joseph Gilbert appeals his conviction of first-degree battery. On appeal, he argues that

the circuit court erred by denying his motion to dismiss for lack of speedy trial, his directed-

verdict motion, and his motion in limine.1 We agree that Gilbert’s right to a speedy trial was

violated, and we therefore reverse and dismiss the case.2

On November 17, 2018, Alesha McWhorter was shot in her home. On November

18, Pine Bluff Police Detective Donald Griffin shackled and questioned Gilbert at the

1
Judge Alex Guynn issued the ruling denying Gilbert’s motion to dismiss for lack of
speedy trial. Judge Edwards sat by special assignment for Gilbert’s jury trial. At trial, Judge
Edwards relied on Judge Guynn’s finding denying the speedy-trial motion.
2
We certified this case to the supreme court, but the court declined to accept the case
for its docket.
detective office about the shooting but ultimately released him. On January 31, 2019, the

State filed a criminal information charging Gilbert with first-degree battery and as a habitual

offender. On October 21, 2022, Gilbert was served an arrest warrant for first-degree battery.3

On July 21, 2023, Gilbert moved to dismiss for lack of speedy trial. He asserted that

his right to a speedy trial attached on November 18, 2018, when Detective Griffin arrested

him. He pointed out that the State had not tried his case, and he asked the court for a

hearing and to dismiss the criminal information against him with prejudice.

On August 8, the court held a hearing. Detective Griffin testified that he investigated

the shooting of McWhorter and that he developed Gilbert as a suspect on the basis of

McWhorter’s statements. He explained that he “put out a BOLO” for Gilbert and that

Gilbert voluntarily came to the detective office on November 18, 2018. He testified he placed

Gilbert in a separate room and shackled him to a chair. He noted that he shackled Gilbert

because “we had people run out of funds at our floor and I was interviewing him by myself.”

Detective Griffin stated that he read Miranda warnings to Gilbert and that Gilbert gave a

statement that he was at a hotel during the shooting. He noted that after Gilbert gave the

statement, Gilbert left the office. Detective Griffin could not recall how long Gilbert was at

the office, but he stated “it wasn’t long.” Detective Griffin also testified that Gilbert was in

custody and was not free to leave. At the conclusion of the hearing, the court denied Gilbert’s

3
The record does not explain why it took over three and a half years to serve the arrest
warrant.

2
motion to dismiss for lack of speedy trial, and on November 28, the court entered a written

order.

On November 29, the court held a trial, and the jury found Gilbert guilty of first-

degree battery. He was sentenced to an aggregate term of sixty years’ imprisonment. Gilbert

appealed his conviction.

On appeal, Gilbert argues that the circuit court erred by denying his motion to

dismiss for lack of speedy trial. He asserts that his right to a speedy trial attached on

November 18, 2018, when Detective Griffin arrested him.

The State responds that Gilbert was not arrested on November 18 but was only

interrogated and released. The State asserts that Gilbert’s speedy-trial rights attached on

October 21, 2022, when he was served with an arrest warrant and taken into custody and

that the speedy-trial period had therefore not expired when Gilbert filed the motion on July

21, 2023.

Arkansas Rule of Criminal Procedure 28.1 establishes that there is a twelve-month

limitation period for bringing a defendant to trial. Specifically, Rule 28.1(c) provides that

[a]ny defendant charged with an offense and held to bail, or otherwise lawfully set at
liberty, including released from incarceration pursuant to subsection (a) hereof, shall
be entitled to have the charge dismissed with an absolute bar to prosecution if not
brought to trial within twelve (12) months from the time provided in Rule 28.2,
excluding only such periods of necessary delay as are authorized in Rule 28.3.

Arkansas Rule of Criminal Procedure 28.2(a) provides:

The time for trial shall commence running from the date of arrest or service of
summons.

3
Thus, the issue here is whether Gilbert was arrested on November 18, 2018, for purposes of

commencing speedy trial.

When we construe a court rule, our review is de novo, and we use the same means

and canons of construction that we use to interpret statutes. Treat v. State, 2019 Ark. 326,

588 S.W.3d 10. The first rule of construction is to construe the rule just as it reads, giving

the words their ordinary and usually accepted meaning in common language. Id. When the

language is plain and unambiguous, there is no need to resort to rules of statutory

construction. Id.

Here, Rule 28.2(a) is plain and unambiguous. In construing the rule just as it reads

and giving “arrest” its ordinary and usually accepted meaning, Gilbert was arrested on

November 18, 2018. There are many definitions for arrest in the law. See, e.g., Ark. Code

Ann. § 16-81-107 (Repl. 2005) (“An arrest is made by placing the person of the defendant

in restraint or by his or her submitting to the custody of the person making the arrest.”);

Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995) (explaining that whether a person has

been seized within the meaning of the Fourth Amendment depends on whether, in view of

all of the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.”); Black’s Law Dictionary (12th ed. 2024) (defining arrest as “1.

A seizure or forcible restraint, esp. by legal authority. 2. The taking or keeping of a person in

custody by legal authority, esp. in response to a criminal charge.”).4

4
“Arrest” is not defined in Rule 28 or anywhere else in the Arkansas Rules of Criminal
Procedure.

4
Under any definition, Gilbert was arrested on that day. Detective Griffin put Gilbert

in a separate room and shackled him to a chair. Detective Griffin Mirandized and

interrogated Gilbert, and he testified that Gilbert was in custody and not free to leave. Thus,

Gilbert was arrested on November 18, 2018, for purposes of commencing the time for speedy

trial.

In arguing that Gilbert was not arrested on November 18, 2018, the State points out

that Gilbert was released and did not have to answer for any criminal charge at that time.

However, the 2007 amendment to Rule 28.2 is relevant to the State’s argument. The pre-

2007 rule provided that the time for trial shall commence running “from the date the charge

is filed, except if prior to that time the defendant has been continuously held in custody or

on bail or lawfully at liberty to answer for the same offense.” See Willams v. State, 271 Ark.

435, 609 S.W.2d 37 (1980) (applying the pre-2007 rule); Samples v. State, 50 Ark. App. 163,

902 S.W.2d 257 (1995) (applying the pre-2007 rule). However, Rule 28.2(a) no longer

includes the “to answer for” language. See State v. Weatherspoon, 2009 Ark. 459 (discussing

the 2007 amendment to Rule 28.2). The reporter’s notes provide as follows:

Prior to the 2007 amendment, this rule provided that the time for trial began to run
on the date the charge was filed, except when the defendant was held in custody or
on bail prior to the filing of the charge, in which case the time for trial began to run
on the date of arrest. The 2007 amendment changed the speedy trial start date to the
date of arrest, whether the charge is filed before or after that date. The reference to
“service of summons” applies to those cases in which the defendant is brought before
the court via a summons, rather than an arrest.

Ark. R. Crim. P. 28.2 rep. notes.

5
The supreme court discussed the 2007 amendments to Rule 28.2 in Weatherspoon,

2009 Ark. 459, and the Weatherspoon facts are strikingly similar to this case. The defendant

was arrested but released without a court date or posting bond. Id. The State later filed

charges and served him with a bench warrant. Id. The defendant moved to dismiss for lack

of speedy trial, alleging that speedy trial commenced on the date of the initial arrest. Id. The

court granted the motion and dismissed the case for lack of speedy trial. Id. The State

appealed and contended that the initial arrest did not trigger speedy trial because the

defendant was not held in custody, did not post bail, and was not released with instructions

to return for a court date. Id. However, the pre-2007 rule applied, and the State could appeal

only if the decision would be important to the correct and uniform administration of the

law. Id. The supreme court concluded that it would not because the State challenged the

interpretation of a prior version of the rule. Id. The court thus dismissed the appeal. Id. The

supreme court, however, explained that Rule 28.2(a) “was amended in 2007 to simply

instruct, ‘[t]he time for trial shall commence running from the date of arrest or service of

summons.’” Id. at 5.

Accordingly, the time from November 18, 2018, the date of Gilbert’s arrest, to July

21, 2023, the filing of Gilbert’s motion to dismiss, exceeds the requisite 365-day period, and

the State does not argue that excusable periods bring the time within 365 days. Thus, we

must reverse and dismiss the case. Because we reverse and dismiss on speedy-trial grounds,

we decline to reach Gilbert’s remaining arguments on appeal. See Durdin v. State, 59 Ark.

App. 207, 955 S.W.2d 912 (1997).

6
Reversed and dismissed.

KLAPPENBACH, C.J., and MURPHY, J., agree.

Terrence Cain, for appellant.

Tim Griffin, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

7