State v. Arambul

605 P.2d 1289, 25 Wash. App. 232, 1980 Wash. App. LEXIS 1952

• Court: Court of Appeals of Washington
• Decided: January 24, 1980
• Docket: No. 2741-4-III
• Status: Published

Opinions

Green, C.J.

This case presents one question: Does the failure of the justice court clerk to give a defendant notice of the filing of a transcript in superior court, as required by JCrR 6.01(d), relieve a defendant-appellant of his duty to diligently pursue the appeal in superior court? The trial court answered "No." We agree.

The facts, in diary form, are:

August 11, 1977. Defendant is found guilty in Yakima County Justice Court of driving with, expired license tabs, no driver's license and driving while the privilege to do so was suspended.

August 22, 1977. Defendant gives written notice of appeal.

August 31, 1977. The justice court clerk files a certified copy of the record in Superior Court.

October 12, 1977. Forty-three days later, the Superior Court issues a notice of dismissal for failure to note the case for trial within 20 days after the transcript was filed. JCrR 6.01(e).¹

October 17, 1977. Defendant issues notice of setting for trial.

October 20, 1977. The Superior Court Administrator sets defendant's trial for January 17, 1978.

January 10, 1978. The State moves for dismissal of the appeal.

January 13, 1978. The court orders defendant's case dismissed.

In opposing the motion to dismiss, defendant filed an affidavit stating he had never received notice from the justice court that the transcript had been sent to Superior Court and he did not discover that the transcript had been sent until the. October 12 notice of dismissal. He relied on JCrR 6.01(d), which reads:

The justice court shall give prompt notice of the filing or mailing [of the transcript] to the respondent and appellant, giving such particulars as date of filing or mailing and superior court file number, if known.

This court has held that the lack of notice under JCrR 6.01(d) does not excuse an appellant's failure to diligently pursue his appeal. State v. Miller, 19 Wn. App. 432, 576 P.2d 1300, review denied, 90 Wn.2d 1018 (1978).²

A consideration of JCrR 6.01(d) in the context of the other sections of the justice court rule governing appeals supports this holding. Under JCrR 6.01(c),³ the justice court must file the transcript with the clerk of the superior court within 10 days after the notice of appeal is filed. This section put defendant on notice that the clerk presumptively would file his transcript within the 10-day period. Under JCrR 6.01(e), defendant had 20 days after the transcript was filed to note his case for trial in Superior Court. Thus, defendant had no right to wait upon notice under JCrR 6.01(d). The primary function of that rule is to advise an appellant that the 20 days has commenced running in cases where the clerk has filed the transcript before the end of the 10-day period.

Read together, these sections imposed upon defendant the implicit duty to ascertain promptly the state of the record when he did not receive notice of the filing of the transcript within 10 days of his notice of appeal. State v. Twogood, 14 Wn. App. 447, 449-50, 542 P.2d 793 (1975). In most cases, a simple telephone call to the court will determine whether the transcript has, in fact, been filed. If it has, then the appellant has 20 days from that point to note his case for trial. If it has not, the appellant may informally determine by telephone or in person when the transcript will be filed, or, under JCrR 6.03(a)

[he] may make application to the superior court not later than twenty days after the filing of the notice of appeal and the superior court shall issue an order [directing the justice court] to make and certify the transcript.

(Italics ours.) The above italicized language of JCrR 6.03(a) which imposes a timetable for the appellant to act within is further indication of the rule makers' intent that the appellant beat the burden of pursuing his appeal.

Here, defendant took no steps to determine the state of the record, but instead, waited until he received a clerk's motion to dismiss his case before he noted the appeal for trial. This manner of proceeding did not comply with JCrR 6.01. The public interest requires diligent pursuit of appeals. Because of the volume of cases processed through the justice courts of this state, the ultimate burden of pursuing an appeal must rest upon the appellant who has already had his "day in court." He cannot be permitted to file his appeal and then shift the responsibility of proceeding further to the court. To hold otherwise would allow an administrative oversight by court personnel to indefinitely delay disposition of an appeal.

Goldendale v. Graves, 88 Wn.2d 417, 562 P.2d 1272 (1977), does not aid defendant. Goldendale held that a 5-day delay in noting a case for trial was excusable neglect under JCrR 10.01(b).⁴ There, the appellant's attorney acted promptly when he discovered that a member of his clerical staff had inadvertently filed the clerk's notice without first bringing it to his attention. Here, defendant did nothing to ascertain the state of the record. This failure to act does not constitute excusable neglect.

Affirmed.

Munson, J., concurs.

1 jCrR 6.01(e) reads:

"Within 20 days after the transcript is filed, appellant shall note the case for trial and otherwise diligently prosecute the appeal."

2 In Miller, a notation on the transcript indicated, that notice had been sent, but the defendant and his attorney denied ever receiving it. On appeal, the court did not rely on the notation, but assumed that the defendant had not received notice. Likewise, in the instant case, defendant did not receive notice.

3 JCrR 6.01(c) states:

"After a notice of appeal is filed, the justice court shall immediately, and in no event later than 10 days thereafter, file with the clerk of the superior court in which the appeal is pending a transcript duly certified by such justice court,..."

4 JCrR 10.01(b) provides:

"Whenever ... an act is required or allowed to be done at or within a specified time, the court, . . . may at any time in its discretion: ... (2) upon motion and notice permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect;..." (Italics ours.)