2005 UT 47
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20040099
Plaintiff and Respondent,
v.
F I L E D
Enoch Hankerson,
Defendant and Petitioner.
August 5, 2005
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Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 021200271
Attorneys: Mark L. Shurtleff, Att'y Gen., Kris C. Leonard,
Asst. Att'y Gen. for plaintiff
Lori Seppi, Heather Johnson, Robert Heineman,
Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
¶1
We granted certiorari in this case to review the court
of appeals' denial of a criminal defendant's motion to dismiss
pursuant to the state's speedy trial statute, Utah Code Ann.
§ 77-29-1(4) (2003). We conclude that the court of appeals erred
in holding that the defendant's motion to dismiss tolled the
speedy trial time limit where the motion did not cause a delay in
the trial.
BACKGROUND
¶2
The relevant facts are set forth in the court of
appeals' opinion, as follows:
On March 24, 2002, while in prison,
[defendant Enoch] Hankerson executed a
"Notice and Request for Disposition of
Pending Charge(s)" pursuant to the Speedy

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Trial Statute. The Division of Institutional
Operations of the Department of Corrections
(the DIO) received this notice on April 9.
The DIO marked the notice "void" and returned
it to Hankerson because he had insufficient
funds in his prison account to pay for the
cost of mailing it and did not satisfy the
requirements of the DIO's "indigent policy."
On April 15, Hankerson executed a second
"Notice and Request for Disposition of
Pending Charge(s)" pursuant to the Speedy
Trial Statute, which the DIO received on
April 19. The DIO rejected this notice and
returned it to Hankerson, for the same reason
it had done so with the first notice. On May
9, Hankerson executed a third "Notice and
Request for Disposition of Pending Charge(s)"
pursuant to the Speedy Trial Statute, which
the DIO received on May 17 and forwarded in
accordance with the Speedy Trial Statute.
At the July 30 pretrial conference,
Hankerson's counsel informed the trial court
for the first time that Hankerson had filed
three separate disposition notices under the
Speedy Trial Statute. To this point, the
State had been relying upon Hankerson's third
disposition notice, which had an effective
date of May 17. Relying upon Hankerson's
first disposition notice, which had an
effective date of April 9, Hankerson's
counsel notified the trial court of his
intention to file a motion to dismiss under
the Speedy Trial Statute. Hankerson's
counsel subsequently filed the motion to
dismiss on August 2 and the trial court held
an evidentiary hearing on the motion on
August 9. After conducting the evidentiary
hearing, the trial court ruled that
Hankerson's first disposition notice was
proper and that it was the controlling notice
under the Speedy Trial Statute. However, the
trial court denied Hankerson's motion to
dismiss, partly based upon its determination
that the disposition period under the Speedy
Trial Statute was extended by the number of
days from July 30, 2002, to August 9, 2002,
No. 20040099
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because [Hankerson] filed a Motion To Dismiss
and requested a hearing on such Motion.
State v. Hankerson, 2003 UT App 433, ¶¶ 3-5, 82 P.3d 1155
(footnotes and internal quotation omitted). Specifically, the
trial court's order denying Hankerson's motion stated:
4. The Court finds that the 120 day
time period was tolled from July 30, 2002, to
August 9, 2002, because the Defendant filed a
Motion to Dismiss and requested a hearing on
such Motion.
5. The Court finds that good cause
exists to extend the time within which to
allow the State of Utah to prosecute this
matter beyond August [7], 2002, because the
Defendant's subsequent filings of 120 day
dispositions caused confusion about the time
period within which the Defendant was to [be]
tried.
¶3
Hankerson's trial was held on August 14-15, 2002.
Following his conviction, Hankerson appealed the trial court's
denial of his motion to dismiss. The court of appeals affirmed
the trial court's ruling on the basis that, under its own
decision in State v. Coleman, 2001 UT App 281, 34 P.3d 790,
Hankerson's filing of a motion to dismiss tolled the 120-day
period set by the speedy trial statute for bringing his case to
trial. Hankerson, 2003 UT App 433 at ¶ 13. This court granted
certiorari to determine whether Hankerson's filing of a motion to
dismiss "should be deemed to toll the running of the 120-day
disposition deadline set forth by [the speedy trial statute,]
section 77-29-1 of the Utah Code."
STANDARD OF REVIEW
¶4
"On certiorari, we review the decision of the court of
appeals, not the decision of the trial court." State v. Harmon,
910 P.2d 1196, 1199 (Utah 1995). We examine the court of
appeals' decision to determine "whether that court accurately
reviewed the trial court's decision under the appropriate
standard of review." State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d
1242. Here, the court of appeals used an abuse of discretion
standard in reviewing the trial court's determination that
Hankerson's charges should not be dismissed pursuant to the
speedy trial statute, Utah Code Ann. § 77-29-1(4) (2003).
Hankerson, 2003 UT App 433 at ¶ 7. We have previously held that
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No. 20040099

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section 77-29-1(4) does "grant[] discretion to the trial court
. . . . to make reasonable determinations concerning the
existence of good cause" excusing the failure to bring a charge
to trial within the required time. State v. Petersen, 810 P.2d
421, 424-25 (Utah 1991). However, "legal determinations
concerning the proper interpretation of the statute which grants
the trial court discretion [must be] reviewed for correctness."
Id. at 425. Here, we determine that the court of appeals made a
legal error in interpreting section 77-29-1(4) and the applicable
precedent from this court.
ANALYSIS
¶5
The sole issue before us is whether Hankerson's motion
to dismiss is sufficient to toll the 120-day period in which the
state is required to bring a charge to trial under the speedy
trial statute, Utah Code Ann. § 77-29-1 (2003). That statute
provides, in relevant part:
(1) Whenever a prisoner is serving a term of
imprisonment in the state prison, jail or
other penal or correctional institution of
this state, and there is pending against the
prisoner in this state any untried indictment
or information, and the prisoner shall
deliver to the warden, sheriff or custodial
officer in authority, or any appropriate
agent of the same, a written demand
specifying the nature of the charge and the
court wherein it is pending and requesting
disposition of the pending charge, he shall
be entitled to have the charge brought to
trial within 120 days of the date of delivery
of written notice.
. . . .
(4) In the event the charge is not brought to
trial within 120 days, or within such
continuance as has been granted, and
defendant or his counsel moves to dismiss the
action, the court shall review the
proceeding. If the court finds that the
failure of the prosecuting attorney to have
the matter heard within the time required is
not supported by good cause, whether a
previous motion for continuance was made or
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not, the court shall order the matter
dismissed with prejudice.
Id. § 77-29-1(1), (4).
¶6
We have previously set forth a two-step inquiry for
determining whether the state's failure to bring a case to trial
within the 120-day period mandated by the speedy trial statute
requires dismissal under section 77-29-1(4). State v. Heaton,
958 P.2d 911, 916 (Utah 1998). "First [a court] must determine
when the 120-day period commenced and when it expired. Second,
if the trial was held outside the 120-day period, [the court]
must then determine whether `good cause' excused the delay."
Id. In the absence of good cause, section 77-29-1(4) requires
the court to grant the defendant's motion to dismiss.
¶7
Here, the trial court concluded, and it is undisputed
on appeal, that the 120-day period commenced when Hankerson
delivered his first notice and request for disposition of the
charges against him to the DIO, notwithstanding the DIO's failure
to forward the notice to the prosecutor.1 Thus, the 120-day
period was due to expire on August 7, 2002. Hankerson's trial,
held on August 14-15, was clearly outside this 120-day period.
The trial court was therefore required to grant Hankerson's
motion to dismiss unless it determined that good cause excused
the delay in holding the trial.
¶8
As indicated above, the trial court's denial of
Hankerson's motion to dismiss was partly based on its conclusion
that "the 120 day time period was tolled from July 30, 2002, to
August, 9, 2002, because the Defendant filed a Motion To Dismiss
and requested a hearing on such Motion." The trial court did not
include in its order any explicit finding that Hankerson's filing
of the motion to dismiss actually caused a delay in the trial.

1 Although this first disposition notice was not properly
forwarded by the DIO, the legislature has clearly placed the
burden of compliance with the speedy trial requirement on the
prosecutor. Utah Code Ann. § 77-29-1(4); see also Heaton, 958
P.2d at 915 (holding that prosecutor "has an affirmative duty to
have the defendant's matter heard within the statutory period");
State v. Wilson, 453 P.2d 158, 160 (Utah 1969) ("It is apparent
that the legislature intended to place the burden of complying
with the statute upon the prosecutor."). At oral argument, we
were assured, as was the court of appeals, Hankerson, 2003 UT App
433 at ¶ 3 n.1, that the DIO no longer follows a policy of
refusing to forward an inmate's legitimate disposition notice
where the inmate lacks the funds in his account to pay postage.
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No. 20040099

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However, the court of appeals interpreted the trial court's
conclusion as "[i]n effect" determining that "the delay
attributable to Hankerson's motion to dismiss extended the 120-
day period by ten days." Hankerson, 2003 UT App 433 at ¶ 12.
The court of appeals then cited its prior decision in State v.
Coleman, 2001 UT App 281, ¶ 11, 34 P.3d 790, for the proposition
that "`a "delay caused to hear a defendant's motion to dismiss
for lack of speedy trial" constitutes good cause excusing the
prosecution's failure' to bring that defendant to trial within
the 120-day period." Hankerson, 2003 UT App 433 at ¶ 13
(alteration marks omitted) (quoting State v. Banner, 717 P.2d
1325, 1329-30 (Utah 1986)). Based on this rule, the court of
appeals concluded that the trial court did not abuse its
discretion in denying Hankerson's motion to dismiss. Id. at
¶¶ 13-14.
¶9
Although the proposition suggested in Coleman is not
necessarily incorrect, the court of appeals in both Coleman and
the instant case has misinterpreted the true import of the phrase
"delay caused to hear a defendant's motion to dismiss." As
indicated above, the court of appeals in Coleman, when
enunciating the quoted proposition, was partially quoting our
opinion in State v. Banner, 717 P.2d 1325 (Utah 1986). Coleman,
2001 UT App 281 at ¶ 11. The Coleman court extracted from Banner
the rule that a trial court must always "conclude that [a]
[d]efendant's motion to dismiss comprised a delay attributable to
him" and must therefore always conclude that there was good cause
under section 77-29-1(4) for delaying the trial for the number of
days it took the trial court to respond to the motion. Id. The
court of appeals in this case relied on the same interpretation
when concluding that Hankerson's filing of a motion to dismiss by
itself constituted good cause justifying a ten-day delay in the
trial.
¶10
Contrary to the court of appeals' reading of Banner,
however, we did not simply conclude in that case that a
defendant's motion to dismiss always constitutes a "delay
attributable to him." Rather, we indicated that the causal
relationship between the motion to dismiss and any delay is a
factual matter that must be determined on a case-by-case basis.
Thus, we initially concluded in Banner that "[t]he substantial
cause of the delay between defendant's arrest and defendant's
trial was the result of defendant's own actions and . . .
constituted a temporary waiver of his right to a speedy trial."
717 P.2d at 1329. We then listed the defendant's filing of a
motion to dismiss as one example of the actions that the
defendant had taken--which also included a plea change, the
filing of several motions to continue, the withdrawal of a guilty
No. 20040099
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plea, the failure to notify the court of the need to appoint new
trial counsel, and the filing of a motion to move the trial date-
-that actually delayed the trial. Id. at 1330. Significantly,
we observed earlier in the opinion that the "move of the trial
date" on one occasion "was made in order to hear defendant's
motion to dismiss for lack of speedy trial." Id. at 1329.
¶11
Our opinion in Banner was in line with our observation
in State v. Velasquez, 641 P.2d 115 (Utah 1982), that "[t]he
obvious purpose of [the speedy trial] statute is to protect the
constitutional right of prisoners to a speedy trial and `to
prevent those charged with enforcement of criminal statutes from
holding over the head of a prisoner undisposed of charges against
him.'" Id. at 116 (quoting State v. Wilson, 453 P.2d 158, 159
(Utah 1969)). We therefore reasoned that, "[w]hen the prisoner
himself acts to delay trial on such charges, he indicates his
willingness to temporarily waive this protection; the purpose
behind the statute thus no longer exists." Id. Similarly in
Heaton, we extended the disposition period where, "[b]ut for [the
defendant's] request for a preliminary hearing, his case would
have been brought to trial" within the required 120-day
disposition period. 958 P.2d at 916. We held that, in delaying
his own trial, the defendant "indicated his willingness to
temporarily waive his rights under the detainer statute." Id.
¶12
In each of these cases, we focused on whether the
defendant's actions actually delayed the trial. We have not, as
the court of appeals suggested in Coleman, held that the filing
of a motion to dismiss, or any other action, extends the 120-day
disposition period as a matter of law. Rather, when concluding
that the defendant's own actions constitute "good cause" for
denying a motion to dismiss under section 77-29-1(4), a trial
court must have sufficient evidence to support a finding that,
but for the defendant's actions, the trial would have been
brought within the required disposition period. To the extent
that Coleman states otherwise, it is overruled.
¶13
In this case, the record does not support a finding
that Hankerson's motion and request for a hearing were the cause
of his delayed trial. Indeed, the trial date was set for August
14-15 before Hankerson filed his motion. It appears more likely
that the failure to hold the trial within the required 120-day
period was solely or primarily attributable to the DIO's errors,
which are, under the statute, attributable to the state for
speedy trial purposes. See Utah Code Ann. § 77-29-1(1)
(indicating that the 120-day period begins to run when a
prisoner's demand is delivered "to the warden, sheriff or
custodial officer in authority, or any appropriate agent of the
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No. 20040099

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same"). Since, however, the parties raised other arguments
before the court of appeals that were not addressed by that
court, we remand this case to the court of appeals for further
consideration of those arguments.2
CONCLUSION
¶14
The court of appeals erred in holding that Hankerson's
motion to dismiss extended the 120-day period for bringing his
case to trial under Utah Code section 77-29-1 where there is no
evidence in the record to indicate that Hankerson's motion
actually caused the trial to be held outside that 120-day period.
We therefore reverse the court of appeals on this issue and
remand to the court of appeals for proceedings consistent with
this opinion.
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¶15
Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham's opinion.

2 The state argues before this court that we should affirm
the court of appeals because Hankerson's multiple disposition
requests created confusion, because Hankerson filed his motion to
dismiss before the 120-day period had ended, and because the
trial date was affected by a scheduling conflict of the defense
counsel. These issues are not within the scope of the question
before us on certiorari, and we therefore decline to address
them. However, we note that under circumstances such as these,
where the date of commencement of the 120-day period was in
dispute, the defendant's filing of a speedy trial motion to
dismiss as a means of obtaining an evidentiary hearing on the
question does not appear unreasonable.
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