Trial date set in DUI case for former Deputy Jailer
District Judge Fred White has scheduled a March 7 trial date for a former Whitley County Deputy Jailer, who is accused of driving while under the influence and careless driving on May 9, 2010.
Despite setting the trial date, White still hasn't ruled on a motion filed by prosecutors on Dec. 21 to reinstate the charges against Lloyd E. "Oscar" Davenport, which White dismissed on Dec. 7.
Defense attorney Jane Butcher contends prosecutors waited too long to ask for the charges to be reinstated, and therefore the charges can't be reinstated.
Davenport was scheduled to stand trial on Dec. 7, but White approved Butcher's motion to dismiss the charges because she alleged that former Whitley County Attorney Paul Winchester hadn't provided discovery evidence in the case. Current Whitley County Attorney Don Moses recused himself that day from prosecuting the case.
On Dec. 15, the Kentucky Attorney General's Office appointed Commonwealth's Attorney Allen Trimble as special prosecutor in the case.
"Contrary to the representations made to the court by opposing counsel, discovery had been mailed to counsel for the defendant much in advance of the December dismissal," Trimble wrote in the motion to reinstate the charges, which was filed on Dec. 21.
Prosecutors have entered signed affidavits by Williamsburg Police Chief Wayne Bird and Winchester, which state that Butcher had been provided with the discovery evidence prior to the charges being dismissed.
"I was aware of the claim of counsel for the defendant that she had not received the discovery in this case," Bird wrote. "Even though I believed the discovery had previously been delivered, I took it upon myself to confirm with the county attorney that he personally delivered a copy of the discovery to defense counsel, and then I mailed the same discovery to defense counsel by registered mail."
Trimble's motion includes a copy of the certified mail receipt and the return receipt that indicated delivery was made on Aug. 4.
On Jan. 20, Trimble filed an affidavit by Winchester, who stated he gave Butcher the discovery evidence.
"Though I am unsure of the exact date, I specifically recall providing discovery personally to counsel for the defendant, Jane Butcher," Winchester wrote in the affidavit dated Jan. 19. "As I handed the discovery to Jane Butcher, which contained a video tape, I recall commenting to her that the audio on the tape was not good, but the video was good. The above action was done in Whitley District Court."
In a motion she filed with the court Monday afternoon, Butcher argued that prosecutors only had 10 days after the entry of dismissal was filed to ask that the ruling be set aside and the case continue to be prosecuted under the original charge, which they didn't do.
"Having failed to file the motion timely, this court is without jurisdiction to hear the motion," Butcher wrote in court filings.
Trimble argued that the rules should be suspended because the county attorney had recused himself and there was no prosecutor during much of the 14-day period from the time the charges were dismissed until he filed the motion to reinstate the charges.
White instructed both sides to research case law on the subject, and noted he would rule on the motion on the March 7 trial date.
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