___________ No. 95-2794

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Mark Robert Dezeler, * * Appellant. *

___________ Submitted: December 12, 1995 Filed: April 10, 1996

___________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.

Mark Robert Dezeler (Dezeler) appeals the district court's orde r denyi ng his motion to dismiss his indictment. Because Dezeler was no t brought to trial within seventy days of his arraignment, as calculate d under the Speedy Trial Act, we reverse and remand.

I. BACKGROUND
This case has reached us because apparently no one has taken th e time to d o the mathematical calculation mandated by the Speedy Trial Act
. Police in St. Paul, Minnesota, were in pursuit of a robbery suspect when
an officer heard a gunshot. Following the direction of the shot, th e police officer immedi ately walked up the driveway of Dezeler's residence. The officer found Dezeler, who

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was carrying a holster, and arrested him as he was entering his house. Th e police discovered a gun loaded with five rounds of ammunition and one spen t round.

Dezeler w as charged by a grand jury with one count of possession of
a fir earm by a convicted felon, in violation of 18 U.S.C. § 922(g). H e made his initial appearance on August 12, 1994, and was arraigned on Augus t 17, 1994, at which time he entered a plea of not guilty. Dezeler mad e several pretrial moti ons on August 31, 1994. The magistrate judge held a hearing o n these motions on September 14, 1994, and took them unde r advisemen t as of that date. In an order signed October 24, 1994, th e magi strate judge resolved the pending issues. On December 12, 1994 , Dezeler's attorney made a motion to withdraw as counsel and the government made an oral motion for a sixty-day continuance. The district cour t granted both motions in an order signed on December 16, 1994.

In January 1995, Dezeler, through his new attorney, made severa l motions including a motion to dismiss the indictment for a violation of th e Speedy Trial Act. On February 9, 1995, the district court denied Dezeler' s motion to dismiss. On the same day, Dezeler ent ered a conditional plea of guilty, reserving his right to appeal the alleged Speedy Trial Ac t violat ion. The district court sentenced Dezeler to twenty-four month s incarceration and three years supervised release . Dezeler now appeals the district court's orde r denying his motion to dismiss the indictment for a violation of the Speedy Trial Act.

II. DISCUSSION

Under th e Speedy Trial Act (the Act), a federal criminal defendan t mus t be brought to trial within seventy days of the filing of th e indictment or of arraignment, whichever is later . 18 U.S.C. § 3161(c)(1); see also United States v. Koory , 20 F.3d 844,

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846 (8th Cir. 1994). The Act excludes time spent on certain proceedings from the calculation. 18 U.S.C. § 3161(d) & (h). In the present case , even with all proper exclusions, seventy-one days had already elapsed on December 11, 1994, and Dezeler had still not been brought to trial.

Dezele r argues that because he was not brought to trial withi n seventy days of his arraignment, his indictment must be dismissed. Dezele r contends that the district court miscalculated t he seventy-day time period under the Act. The government concedes that the district court erred in its determination of the number of excludable days under its speedy trial analysis, but nevertheless contends that no speedy trial violatio n occurred. The government asserts that the defendant's attorney made his motion to withdraw onwhat would have been day seventy-one but making the motion rendered that an excludable day thereby h olding the total number of days a t seventy. The government's calculation fails, however, becaus e Dezeler's attorney made his motion to withdraw o n day seventy-two , not day seventy-one.

Our analys is of the number of days that elapsed under the Ac t req uires a rather detailed recitation of the procedural history of thi s case. Dezeler was arraigned on August 17, 1994. Thus, the speedy trial calculation begins the next day on August 18, 1994. United States v. Long , 900 F .2d 1270, 1274 (8th Cir. 1990) (citation omitted). Dezeler file d several motions on August 31, 1994. The magistrate judge held a hearing
on those motions on September 14, 1994. Under the Act, "delay resulting from any pretrial motion, from the filing of the motion through th e conclusion of the hearing on, or other prompt di sposition of, such motion" is ex cluded from the calculation. 18 U.S.C. § 3161(h)(1)(F); see als o Henderson v. United States , 476 U.S. 321, 326-31 (1986). Thus, the time from Au gust 31 through September 14 is excluded from the calculation
. Accordingly, thirteen days had elapsed from August 18 through September 14
.

### As the government concedes, the district court erred i n 1 

### excluding the entire period from August 31 to October 24. Although the government states in its brief that Dezeler' s 2 

### trial was continued from October 24, 1994, until November 28 , 1994, and that trial did not convene on November 28, the governmen t fails to articulate how these continuances came about. Brief of A ppellee at 1. Dezeler did not waive his speedy trial challenge because he

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### made his motion to dismiss on January 30, 1995, and did not enter his guilty plea until February 9, 1995. Moreover, Dezele r expresslyreserved his right to appeal the denial of his speed y trial challenge by entering a conditional guilty plea. The United States relies on United States v. Jones which w e believe to be inapposite for several reasons, including: (1) the continua nce from December 12 to February 9 was not caused by an y misconduct on the part of Dezeler; and (2) we do not count any of the days during the continuance in our speedy trial calculation. 23 F.3d 1307, 1310 (8th Cir. 1994) (holding that the defendan t "should not be saved from a waiver that would have been effective on [the date retrial was to commence], when the reason no retrial -4- In additi on to conducting a hearing on the motions on September 14, 1994, the magistrate judge took those motions under advisement on tha t date. Although the s peedy trial calculation recommenced on September 15, "any period, not to exceed thirty days, during which any proceedin g concerning the defendant is actually under advisement by the court" i s excluded from the calculation. 18 U.S.C. § 3161 (h)(1)(J). The magistrate judge did not sign his order until October 24, 1994, which falls beyond th e statutorily imposed thirty-day maximum. Therefo re, the maximum excludable period of thirty days ended on October 14, 1994. 1
During th e period from October 15 through December 11, 1994, fiftyeight days elapsed. Neither the parties nor the district court's docket sheet describe any event during this period that would trigger an exclusio n under the Act. See generally 18 U.S.C. § 3161(h). Therefore, we conclude 2 that as of December 11, 1994, seventy-one days h ad elapsed--the sum of the thirt een days in August that had elapsed and the fifty-eight days fro m October 15 through December 11--and Dezeler had not yet been brought t o trial. Therefore, the fact that Dezeler's attorney filed a motion

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### took place on that date was because of his own misbehavior [ causing

his attorney to withdraw by threatening him]").

-5- to withdr aw on December 12, 1994, day seventy-two, has no effect on ou r calculation.

"When a violation of the time limits of the Act is shown to hav e occurred, dismissal is mandatory on motion of the defendant." Koory , 20 F.3d at 846 (citations omitted). The Act itself, in relevant part, states :
If a def endant is not brought to trial within the time limi t req uired by section 3161(c) [70 days] as extended by sectio n 3161(h) [excludable time ], the information or indictment shall be dismissed on motion of the defendant.

18 U.S.C. § 3162(a)(2). Because Dezeler was not brought to trial within the seventy-day period, as calculated under the Act, we must dismiss the indictment.
Although the Act mandates a dismissal of the indictment, the tria l court retains discretion as to whether the dismissal should be with o r without prejudice. The section of the Act deali ng with sanctions provides guidance and, in relevant part, states:

In determining whether to dismiss the case with or withou t prejudice, the court sha ll consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of thi s chapter and on the administration of justice.

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18 U.S.C. § 3162(a)(1). Therefore, on remand the district court mus t consider these factors in determining whether to dismiss Dezeler' s indictment with or without prejudice.

III. CONCLUSION

For the reasons discussed above, we reverse the district court' s ord er denying Dezeler's motion to dismiss the indictment. We remand th e case to the district court for an order dismissing the indictment and for a determination whether the indictment should be dismissed with or without prejudice.

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.