State v. DeLong
This text of 557 P.2d 14 (State v. DeLong) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The defendant, John Joseph DeLong, was *453 charged and ultimately convicted of a violation of RCW 74.08.055, willfully subscribing to an application for public assistance which he did not believe to be true. A motion to dismiss was made for failure to comply with CrR 3.3 1 and to try the defendant within 90 days of his first court appearance. Defendant’s motion was denied and this appeal resulted.
*454 It is undisputed that defendant’s trial was 118 days after his first court appearance. Accordingly, defendant’s motion must be granted unless defendant has waived his right to a speedy trial or a sufficient period of time is excluded, as provided in the rule, to bring the trial within the 90-day requirement.
The State concedes in its brief, and we agree, that the record of pretrial proceedings does not make a sufficient showing of court congestion to excuse noncompliance with the rule. A sufficient factual record, as required by State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975), and State v. Espeland, 13 Wn. App. 849, 537 P.2d 1041 (1975), was not made.
The State contends defendant’s motion was properly denied since the following time should be excluded (1) that involved in competency proceedings, and (2) that necessarily required to hear the motion for change of venue, or, alternatively, defendant’s motion for change of venue and conduct in relation thereto amounted to a waiver of his right to a speedy trial.
The only question or discussion of competency occurred at defendant’s first court appearance on December 19, 1974:
The Court: Do you understand what the information charges you with?
Does he understand?
[Defense counsel]: Your Honor, I’d like to withhold questions of competency at this time.
The Court: All right. You may do so. Now, he is apprised, is he not—he’s had the benefit of your counsel and advice?
[Defense counsel]: That’s right, Your Honor.
The Court: And he’s apprised of the nature of the offense?
[Defense counsel]: Yes, Your Honor, to the extent that I could explain it to him.
The Court: Well, I gather that it’s his intention to plead not guilty to this charge. Am I correct?
[Defense counsel]: I’d like to if possible—
The Court: You’re reserving for the record?
[Defense counsel]: Yes, for the record, and make this only a first appearance so that we can inquire further *455 into the competency issue prior to entering a plea of guilty or not guilty.
On January 13, 1975, defendant appeared and pleaded not guilty. Nothing else appears in the record relating to competency.
There were no competency proceedings which would be excluded under CrR 3.3(d)(1). Only those periods of time are excluded where actual proceedings are initiated with the specific purpose of determining defendant’s competency to stand trial. See State v. Williams, 14 Wn. App. 803, 545 P.2d 572 (1976); State v. Cuzick, 13 Wn. App. 896, 538 P.2d 862 (1975); State v. Setala, 13 Wn. App. 604, 536 P.2d 176 (1975).
A defendant, not pleading at his first court appearance and raising the possibility of a plea based on lack of competency, is not involved in “proceedings relating to the competency of the defendant to stand trial” which would be excluded under the rule. Even if the time between the first court appearance and the entry of the not guilty plea was excluded, defendant would not have been tried within 90 days.
The time involved in hearing defendant’s motion for a change of venue is not excluded. The rule, by specifically including competency proceedings, evidences an intent not to include other pretrial proceedings. The holding and rationale of State v. Durham, 13 Wn. App. 675, 537 P.2d 816 (1975), where the court refused to exclude the time necessarily involved in hearing a motion to suppress, is conclusive of this contention.
Defendant on January 13, 1975, made an oral motion for change of venue, filed authorities in support of the motion on February 24, 1975, and the motion was heard on March 10, 1975, the first regularly scheduled motion day after the memorandum was filed. The State urges that defendant’s delay in filing material in support of the motion is a waiver of the right to a speedy trial.
The doctrine of waiver as it existed prior to the adoption of CrR 3.3 has been severely limited, although not *456 entirely Abrogated. The right is waived by failing to ¿nove for dismissal prior to trial. State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975). Defendant’s motion was timely in this réspéct. The defendant can explicitly waive the right, but such waiver must clearly appear from the record. State v. Williams, 14 Wn. App. 803, 545 P.2d 572 (1976). The record is'-clear that defendant, despite considerable delay in filing Authorities in support of his motion to change venue, did not waive his right to trial within 90 days. 2
*457 ■ The judgment is reversed with directions to dismiss the action.
Callow and Andersen, JJ., concur.
Petition for rehearing denied February 23, 1977.
Review denied by Supreme Court September 29, 1977.
Judge Frank D. Howard is serving as a judge pro tempore of. ithfe Court of Appeals pursuant to RCW 2.06.150.
Although CrR 3.3 was amended effective May 21, 1976, the rule in effect at the time of this incident stated:
“(a) Responsibility of Court.
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Cite This Page — Counsel Stack
557 P.2d 14, 16 Wash. App. 452, 1976 Wash. App. LEXIS 1729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-delong-washctapp-1976.