State v. Barton

565 P.2d 830, 17 Wash. App. 846, 1977 Wash. App. LEXIS 1647

• Court: Court of Appeals of Washington
• Decided: June 22, 1977
• Docket: 2275-3
• Status: Published

Opinions

Green, J.

Discretionary review was granted by the Commissioner to consider one question:

When a mistrial has been declared because a jury cannot reach a verdict, do the time limits of CrR 3.3 run anew from the date of the mistrial to the date of the second trial?

Defendant was charged with second-degree murder as a result of a shooting on August 21, 1976. He entered a preliminary appearance on August 23, and was released on bail. Trial commenced November 1 and on November 5, a mistrial was declared because the jury was unable to reach a verdict. The Court Administrator scheduled the case for retrial on February 7, 1977, 94 days after the mistrial was declared. On February 4, defendant, based upon CrR 3.3(b) moved to dismiss the charge for the reason that he had not been retried within 90 days. This motion was denied. On review, the defendant does not claim that his constitutional right to speedy trial was denied or that he was in any way prejudiced; he only alleges a denial of the right conferred by CrR 3.3. We affirm the trial court's denial of the motion and remand for trial.

It is clear from a reading of CrR 3.3 that it does not directly or even inferentially cover retrials following mistrials. In pertinent part, CrR 3.3 provides:

(b) Time Limit. A criminal charge shall be brought to trial within 90 days following the preliminary appearance.

(g) Dismissal With Prejudice. A criminal charge not brought to trial as required by this rule shall be dismissed with prejudice.

(Italics ours.) Since the defendant was "brought to trial within 90 days following the preliminary appearance", he cannot claim a violation of the rule.

Notwithstanding, defendant contends that State v. Striker, 87 Wn.2d 870, 873-74, 557 P.2d 847 (1976), requires that we adopt section 2.2(c) of the ABA Standards Relating to Speedy Trial (Approved Draft, 1968), which, among others, declares the 90-day provision applicable to retrials following mistrials.¹ Therefore, defendant argues that the action should be dismissed. We disagree.

The language in Striker, upon which defendant relies, is as follows:

A majority of this court has twice indicated that the ABA standards should be consulted where a hiatus appears in CrR 3.3.

While those cases [State v. Elizondo, 85 Wn.2d 935, 540 P.2d 1370 (1975); and State v. Parmele, 87 Wn.2d 139, 142, 550 P.2d 536 (1976)] do not dispose of the question presented here, they point to a source which this court should consult for guidance where a situation arises which was not contemplated by the rules and not covered by a statute which is in harmony with the rules.

In our view, this language applies to the interpretation of a rule that becomes unclear in light of a particular factual situation within the terms of the rule. It does not apply to the creation or adoption of a rule governing a new subject. The power to create and adopt new rules of the type in question resides with the Supreme Court. We do not believe that Striker intended to delegate that rule-making power to the superior court or to this court. Moreover, in our view the creation and adoption, in contrast to the interpretation, of new rules should not be accomplished by ad hoc judicial decision.2

CrR 3.3 does not cover the area of retrials after mistrials, new trials, or remands for new trials following an appeal. There is nothing in CrR 3.3 that would allow us, as a matter of interpretation, to utilize section 2.2(c) of the standards in resolving the issue before this court. To apply the standards in this case would require us to adopt them as a new rule. As previously noted, this court does not have that rule-making power.³ Even if we had the power, we would not apply such a rule retroactively so as to cause a dismissal of the charge against this defendant where there is no prejudice to him and no contention that his constitutional right to speedy trial has been denied. Retroactive application of such a rule in these circumstances would clearly thwart the public's interest in effective law enforcement and interfere with the orderly administration of justice.

Remanded for trial.

Munson, C.J., concurs.

1 Section 2.2(c) of the standards provides:

"The time for trial should commence running, without demand by the defendant, as follows:

"(c) if the defendant is to be tried again following a mistrial, an order for a new trial, on an appeal or collateral attack, from the date of the mistrial, order granting a new trial, or remand." (Italics ours.)

2 State v. Bepple, 14 Wn. App. 491, 542 P.2d 1260 (1975), cited in the dissent, does not involve rule-making nor the adoption of a new rule. That case only stands for the proposition that JCrR 3.08 requiring a trial within 60 days of the defendant's appearance is not triggered by his special appearance challenging jurisdiction. Hence, the court was not creating a new rule; it only recognized that JCrR 3.08 did not become operative until after the remand. Moreover, the defendant in Bepple never had a trial.

3 Adoption of section 2.2(c) of the standards in the normal course of the Supreme Court's rule-making process would not be inconsistent with the underlying philosophy of CrR 3.3(b).