Filed Washington State Court of Appeals Division Two
March 4, 2025 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 59094-8-II
Appellant,
v.
W.H., PUBLISHED OPINION
Respondent.
GLASGOW, J.—WH was 17 years old when he allegedly attacked his girlfriend, strangled
her, threatened to kill her, and stabbed her pet. The State charged him in juvenile court with second
degree assault by strangulation, harassment—threat to kill, first degree animal cruelty, and third
degree malicious mischief, all with domestic violence designations. After WH turned 18, the State
moved to dismiss the charges without prejudice because of difficulty communicating with the
alleged victim. The trial court dismissed the charges with prejudice instead, based on its conclusion
that WH would have to be tried as an adult if the case were later refiled. The State appeals and
contends that the trial court abused its discretion by ending the State’s case permanently on the
State’s CrR 8.3(a) motion to dismiss without prejudice.
We agree with the State and reverse because the Washington Supreme Court has held that
dismissal with prejudice before the expiration of the time-for-trial period is an extraordinary
remedy that is inappropriate absent consideration of intermediate alternatives. Where the State has
moved to dismiss without prejudice under CrR 8.3(a), the trial court may grant the motion as
brought. The trial court may also deny the motion, giving the State the remainder of the time-for-
trial period to develop its evidence or determine whether to proceed without the uncooperative 59094-8-II
witness; and if the time for trial expires, the trial court may then dismiss with prejudice under CrR
3.3(h) or JuCR 7.8 (h). The trial court also has authority under CrR 8.3(b) to dismiss charges on
its own motion with or without prejudice, but it must apply the standards set forth in that subsection
of the rule and find arbitrary action or governmental misconduct and prejudice to the defendant.
We conclude that the trial court does not have authority under CrR 8.3(a) to resolve a
State’s motion to dismiss without prejudice by dismissing the charges with prejudice. We therefore
reverse and remand for proceedings consistent with this opinion. We note that on remand, the
recent amendments to former RCW 13.40.300 (2019) (Laws of 2024, ch. 117, § 1) will apply
because this case is still pending and not yet final.
FACTS
I. BACKGROUND
In August 2022, Officer Nathan Swanson was dispatched to investigate an assault. The
reporting party informed Swanson that the party’s daughter, KM, had been attacked in her
apartment by WH, her 17-year-old boyfriend. At that time, KM told Swanson about the incident
and he recorded the details in a narrative report.
KM alleged that she and WH had been fighting for a few days after he accused her of
cheating on him, demanded that she be screened for sexually transmitted diseases, and then
threatened to harm her. Over the next few days, KM reported that WH became increasingly
aggressive, grabbing her and yelling at her. At one point, KM alleges, WH held up a knife to her
arm and told her to kill herself.
The fighting culminated when WH came to KM’s apartment in the middle of the night and
assaulted her multiple times. KM told Swanson that during the incident, WH came into her room,
ripped up her clothes, and smashed her belongings. Then, while she was lying on the bed, WH
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shoved her head into the wall and strangled her. He then dragged her by her hair off the bed onto
the floor and then onto the couch, where he threatened to kill her and strangled her again. KM
could not breathe, made choking noises, and saw spots. WH allegedly took KM’s pet lizard out of
its cage and stabbed it in the head with a pair of scissors before leaving the apartment. KM hid in
her bathroom while she waited for help to arrive.
The State charged WH with second degree assault by strangulation, harassment—threats
to kill, first degree animal cruelty, and third degree malicious mischief. WH made a preliminary
appearance on those charges in juvenile court. The State transferred the case to adult court after
adding charges for attempted second degree murder and, in the alternative, second degree
attempted felony murder.
A year later, before proceeding to trial, the State requested that the trial court transfer the
case back to juvenile court, dismissing the attempted murder charges, because juvenile court would
“provide the services necessary, and the charges more accurately reflect the actions of [WH].”
Clerk’s Papers (CP) at 44. WH was rearraigned under his original juvenile cause number. WH
pleaded not guilty to the charges in juvenile court. The trial court set a 60-day time for trial. At
that time, the State advised the trial judge of its attempts to contact KM.
II. CrR 8.3(a) HEARING
WH’s date of birth is December 1, 2004, and he turned 18 on December 1, 2022. WH will
turn 21 on December 1, 2025.
Four days before WH’s time for trial was to expire, in early December 2023, the State
moved to dismiss the charges without prejudice under CrR 8.3(a) because “based on prior
conversations with [KM] and her advocate, and recent lack of participation, she is not in a[n]
emotional position for the case to move forward at this time.” CP at 9. WH’s counsel also had not
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been able to reach KM after trying for “about six months.” Verbatim Rep. of Proc (VRP) (Mot.
Hr’g) at 2.
WH objected and asked the trial court to dismiss with prejudice. The State volunteered that
WH would suffer prejudice if the case were dismissed without prejudice because at that time, if
charges were refiled, juvenile jurisdiction could no longer be extended because he was over 18.
Relying on State v. Bible, 77 Wn. App. 470, 892 P.2d 116 (1995), the trial court concluded
that under CrR 8.3(a), it had discretion to grant the State’s motion with or without prejudice. In
Bible, Division One held that to properly grant a CrR 8.3(a) motion without prejudice, the State
must have a reason for dismissal apart from the running of the speedy trial clock, and the trial court
must evaluate prejudice to the defendant if the case were dismissed. 77 Wn. App. at 472.
In this case, the trial court determined that the State had a reasonable cause for dismissal
but there would be undue prejudice to WH if the court were to dismiss without prejudice due to
the loss of juvenile jurisdiction. The trial court noted that it is a prevailing interest of justice to
give victims the opportunity to be heard and to have their interests addressed in a criminal
proceeding. However, in weighing KM’s interest against the consequences to WH, the court
explained that dismissal without prejudice would put WH in far greater jeopardy than he would be
if KM were willing and able to come forward while the case could be tried in juvenile court. The
trial court did not want to “diminish[] the difficulty that she’s experiencing or may be experiencing
here,” but the court ultimately concluded “there would be undue prejudice to [WH] if the [c]ourt
were to dismiss this without prejudice.” VRP (Dismissal Hr’g) at 5. The trial court thus dismissed
the case with prejudice. The trial court did not find that the State had mismanaged the case, acted
arbitrarily, or engaged in misconduct. The State now appeals.
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ANALYSIS
The State argues that the trial court abused its discretion by misinterpreting and
misapplying CrR 8.3(a) by dismissing the case with prejudice on the State’s motion to dismiss
without prejudice. The State urges us to adopt a reading of CrR 8.3(a) that acknowledges the trial
court’s discretion to either grant or deny a State motion as brought, but the State contends we
should not expand the trial court’s authority under CrR 8.3(a) to permanently dismiss the State’s
charges with prejudice when the State moved only to dismiss without prejudice. The State
nevertheless recognizes the trial court’s separate authority to dismiss with or without prejudice
under CrR 8.3(b), so long as the prerequisites of that subsection are met, including a finding of
governmental misconduct or arbitrary action.
In contrast, WH argues that the trial court had discretion under CrR 8.3(a) to dismiss with
prejudice, even though the State’s motion was for dismissal without prejudice. WH contends that
the trial court needed only find that WH would be unfairly prejudiced if the charges were refiled
in order to dismiss under CrR 8.3(a) with prejudice.
For the reasons explained below, we agree with the State.
A. CrR 8.3 Motions to Dismiss Criminal Charges
We review a trial court’s decision on a prosecutor’s motion to dismiss a criminal
proceeding for abuse of discretion. Bible, 77 Wn. App. at 471. A trial court abuses its discretion
when its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable
reasons. Id. “A reviewing court may not find abuse of discretion simply because it would have
decided the case differently—it must be convinced that ‘no reasonable person would take the view
adopted by the trial court.’” State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017)
(internal quotation marks omitted) (quoting State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d
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1160 (2000)). Misapplying the law constitutes an abuse of discretion. State v. Neal, 144 Wn.2d
600, 609, 30 P.3d 1255 (2001).
Under CrR 8.3, there are three avenues for dismissal of a criminal case. First, CrR 8.3(a)
provides that on a motion from the State, “[t]he court may, in its discretion, upon written motion
of the prosecuting attorney setting forth the reasons therefor, dismiss an indictment, information
or complaint.” (Emphasis added.)1 Second, under CrR 8.3(b), the trial court, “in the furtherance of
justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when there has been prejudice to the rights of the accused which
materially affect the accused’s right to a fair trial.” Third, the defendant may move for pretrial
dismissal under CrR 8.3(c) “due to insufficient evidence establishing a prima facie case of the
crime charged” and if granted, the motion shall be dismissed “without prejudice.” CrR 8.3(c)(4).
CrR 8.3(c) is the only subsection that mentions whether dismissal must be with or without
prejudice.
Construction of a court rule is a question of law that we review de novo. State v. Robinson,
153 Wn.2d 689, 693 107 P.3d 90 (2005). We apply canons of statutory interpretation to court rules
as well. Id. at 692. As with methods of statutory interpretation, we strive to determine and carry
out the drafters’ intent. Phongmanivan v. Haynes, 195 Wn.2d 309, 313, 458 P.3d 767 (2020). We
examine the rule’s plain meaning not in isolation but in context, considering its text, surrounding
context, related provisions, and the regulatory scheme as a whole. Id. If the rule is subject to only
one reasonable interpretation, then it is unambiguous and “‘our inquiry ends’” because no further
interpretation is necessary. State v. Jieta, 12 Wn. App. 2d 227, 231, 457 P.3d 1209 (2020) (quoting
City of Seattle v. Holifield, 170 Wn.2d 230, 237, 240 P.3d 1162 (2010)). Finally, we avoid
1 CrR 8.3 applies in juvenile court proceedings under JuCR 1.4(b).
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interpreting court rules in a manner that would render substantive portions of the rules
meaningless. John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 381-82, 374 P.3d 63 (2016).
The Washington Supreme Court has stated governing principles regarding dismissal of
criminal charges under CrR 8.3. In State v. Wilson, the Washington Supreme Court held that
“dismissal under CrR 8.3 is an extraordinary remedy, one to which a trial court should turn only
as a last resort.” 149 Wn.2d 1, 12, 65 P.3d 657 (2003). Courts should consider all intermediate
remedial steps before dismissing. Id. at 12. Although Wilson specifically involved application of
CrR 8.3(b), the court articulated these principles as applying to CrR 8.3 more generally, and
because dismissal without agreement from the State is an extraordinary remedy, we see no reason
why these principles should not apply to all prongs of CrR 8.3.
A dismissal without prejudice under CrR 8.3 has the effect of tolling the speedy trial period
under CrR 3.3(e)(4). Division One has held that “a sufficient reason must exist apart from the
running of the speedy trial period to justify a dismissal without prejudice under CrR 8.3(a),” and
“the trial court must evaluate possible prejudice to the defendant.” Bible, 77 Wn. App. at 472. In
Bible, the trial court granted the State’s CrR 8.3(a) motion to dismiss without prejudice. Id. at 471.
Bible appealed, arguing that the dismissal should have been with prejudice because the State
sought the dismissal to avoid the speedy trial rule and had mismanaged the case. Id. Division One
rejected Bible’s argument that the State had failed to exercise due diligence, it did not find any
prejudice to the defendant, and it affirmed the trial court’s dismissal without prejudice. Id. at 472-
73.
We note two important aspects of the Bible decision. First, the Bible court did not discuss
what the appropriate remedy should be if the trial court concludes that the defendant would
experience undue prejudice if dismissal without prejudice were granted: whether the court should
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dismiss with prejudice instead or simply deny the State’s motion with the consequence that the
time-for-trial clock keeps ticking. Id. Second, the trial court in Bible in fact examined both the CrR
8.3(b) factors—the extent of State arbitrary action or misconduct and prejudice to the defendant—
even though the court purported to be analyzing the dismissal under CrR 8.3(a). Id. at 471. The
Court of Appeals then similarly discussed whether the State had acted with due diligence when it
failed to subpoena a witness. Id. at 473.
B. The Trial Court Improperly Dismissed with Prejudice without Exhausting Other Remedial Steps
Here, the State claims that the trial court misinterpreted Bible by relying on it to dismiss
with prejudice when the State brought a motion for dismissal without prejudice. According to the
State, Bible merely “stands for the proposition ‘that a sufficient reason must exist apart from the
running of the speedy trial period to justify a dismissal without prejudice under Cr 8.3(a).’”
Opening Br. of Appellant at 11 (quoting Bible, 77 Wn. App. at 472). The State claims by
dismissing with prejudice, the trial court effectively acted sua sponte or on a request from WH,
granted a motion to dismiss with prejudice without the requisite 8.3(b) finding of State arbitrary
action or misconduct. WH responds that the rule does not prevent the trial court from exercising
discretion as to whether to grant an 8.3(a) motion with or without prejudice.
Considering first the plain language of CrR 8.3(a), the rule states that the trial court may
dismiss criminal charges “in its discretion upon written motion of the prosecuting attorney.”
(Emphasis added.) Subsection (a) does not allow the trial court to exceed the scope of a State
motion and dismiss with prejudice, permanently ending the State’s case. We acknowledge that the
plain language of CrR 8.3(a) does not expressly limit the trial court to dismissing either with or
without prejudice, unlike the related provision in CrR 8.3(c)(4) that expressly states the court shall
grant a defendant’s motion for dismissal only “without prejudice.” CrR 8.3(c)(4)’s limitation to
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dismissal without prejudice secures flexibility for the State to refile the charges “[b]ecause the
legal and substantive issues are generally not resolved.” State v. Taylor, 150 Wn.2d 599, 602, 80
P.3d 605 (2003). CrR 8.3(a) also gives the State flexibility by letting it decide how to bring its own
motion (with or without prejudice) prior to the expiration of the time for trial, and the trial court
does not have discretion to exceed the scope of that motion. This reasoning avoids the potential
chilling effect on the State, which could be reluctant to bring a motion to dismiss without prejudice
for fear that the trial court will dismiss with prejudice. Before the expiration of the time for trial,
the State is entitled to have its motion—here a motion to dismiss without prejudice—granted or
denied as the motion was brought because there is still time to resolve substantive issues at trial.
The Washington Supreme Court has long acknowledged the prosecution’s broad discretion
to manage their own case, for example, by determining the nature and number of charges to bring
(or not to bring) and when to file them. See State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012);
see also City of Kennewick v. Fountain, 116 Wn.2d 189, 802 P.2d 1371 (1991). Similarly, under
CrR 8.3(a), there is no language limiting a prosecutor’s discretion to bring a motion to dismiss
charges with or without prejudice. And the Supreme Court has emphasized that it is extraordinary
to dismiss charges with prejudice without agreement from the State. See Wilson, 149 Wn.2d at 12.
WH does not point to an example of any case where dismissal with prejudice, particularly when
the State requested dismissal without prejudice, has been upheld absent expiration of the time for
trial or a finding the State committed arbitrary action or governmental misconduct.
If the trial court is concerned about prejudice that might result from granting a CrR 8.3(a)
motion without prejudice, it must not ignore “‘intermediate remedial steps’” or “reasonable
alternatives” short of dismissing with prejudice. Wilson, 149 Wn.2d at 12 (quoting State v.
Koerber, 85 Wn. App. 1, 4, 931 P.2d 904 (1996)); Koerber, 85 Wn. App. at 4. In this situation, the
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trial court could deny the motion, leaving the State to deal with a ticking time-for-trial clock with
the knowledge that if it expires without a continuance, the result will be dismissal with prejudice
under CrR 3.3(h) or JuCR 7.8(h).2 Additionally, if the trial court believes that a dismissal without
prejudice is inappropriate because of prejudice to the defendant, it could say so and give the State
the chance to withdraw its motion. But until the time for trial runs out, the State should have the
opportunity to proceed with its case. An alleged victim may be encouraged to testify and have their
day in court if they know it is now or never. And knowing the alternative is dismissal with
prejudice, the State might decide to proceed to trial without the alleged victim’s testimony. The
trial court’s dismissal with prejudice here deprived the State and KM of these intermediate
alternatives.
Of course, the trial court could turn to CrR 8.3(b) sua sponte and evaluate whether it wants
to dismiss with prejudice on its own motion as opposed to granting the motion the State brought.
But this option requires the trial court to address the CrR 8.3(b) requirements. Interestingly, the
trial court in Bible effectively applied the CrR 8.3(b) standards of arbitrary action or governmental
misconduct and prejudice to the defendant when considering whether dismissal without prejudice
was appropriate. 77 Wn. App. at 471. After considering both, the Bible trial court dismissed the
case without prejudice, and Division One affirmed after considering whether the State acted with
due diligence. Id. at 472-73.
2 WH argues that under State v. Agustin, 1 Wn. App. 2d 911, 407 P.3d 1155 (2018), separation of powers prevents the trial court from denying a State’s motion to dismiss under CrR 8.3. But the Agustin court’s holding is more limited than WH contends. The Agustin court was careful to limit its holding that a trial court cannot effectively overrule the prosecutor’s discretion when the prosecutor has determined that there is insufficient evidence to support the charges brought against the defendant. Id. at 919. Agustin did not address a situation where the prosecutor has brought a motion to dismiss without prejudice because they believe a reluctant witness may decide to cooperate in the future.
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WH argues that Bible suggests, but does not explicitly say, that there are circumstances
when a dismissal with prejudice under CrR 8.3(a) would be appropriate. In other words, if the trial
court is limited to granting or denying the State’s motion as presented, then much of the Bible
court’s analysis would have been unnecessary. But here, unlike in Bible, the trial court dismissed
the State’s case against WH with prejudice without addressing any findings of arbitrary action or
governmental misconduct. The trial court here only addressed prejudice, finding that, although the
State provided a proper basis for dismissal, the loss of juvenile jurisdiction was “undue prejudice
to [WH].” VRP (Dismissal Hr’g) at 5. Unlike in Bible, the trial court here dismissed the case based
on prejudice to WH alone with no ability for the State to refile. Thus, we decline to interpret Bible
as allowing dismissal with prejudice under this set of facts.
In sum, we conclude that when the State brings a motion to dismiss under CrR 8.3(a), the
trial court must address that motion as brought, granting it or denying it. If the motion is brought
without prejudice, and the trial court is not inclined to grant the motion, it has intermediate options
short of dismissal with prejudice. The trial court can deny the State’s motion, leaving the State
with a ticking time-for-trial clock. If a continuance is not available, the State can proceed to trial
with the evidence it has or the case may be dismissed with prejudice after expiration of the time
for trial under CrR 3.3(h) or JuCR 7.8(h). The trial court can also address dismissal under CrR
8.3(b) on its own motion, but it must find arbitrary action or governmental misconduct and
prejudice to the defendant in order to dismiss with prejudice under that prong of the rule. Here,
because the trial court did not opt for one of these permissible options, we reverse and remand for
further proceedings consistent with this opinion.
We acknowledge that in the intervening time since the trial court’s order and the State’s
notice of appeal, the Washington legislature adopted an amendment to former RCW 13.40.300 in
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2024. See LAWS OF 2024, ch. 117, § 1. The amendment extends juvenile court criminal jurisdiction
to individuals who were under the age of 21 at the time of the filing of the information for crimes
committed when they were under the age of 18. RCW 13.40.300(2)(a)(i). The amendment became
effective on June 6, 2024. Because we reverse the trial court’s dismissal of the charges against WH
with prejudice, and the amendments to RCW 13.40.300 apply to all cases in which charges are
pending on the effective date of this section. The statutory amendments will apply on remand.
CONCLUSION
We hold the trial court does not have the discretion to decide whether to dismiss with or
without prejudice on a State’s CrR 8.3(a) motion to dismiss without prejudice. The State is entitled
to have its motion either granted or denied as it was brought in order to preserve the State’s right
to use the rest of its time for trial. We reverse the trial court’s dismissal of WH’s charges with
prejudice and remand for further proceedings consistent with this opinion.
GLASGOW, J. We concur:
VELJACIC, A.C.J.
CHE, J.