State v. Elizondo

540 P.2d 1370, 85 Wash. 2d 935, 1975 Wash. LEXIS 946

• Court: Washington Supreme Court
• Decided: October 9, 1975
• Docket: 43615
• Status: Published

Opinions

Brachtenbach, J.

This is a review on writ of certiorari of an order of the superior court denying the petitioner’s motion to dismiss an information against him.

The following events give rise to this matter:

1. August 22, 1974. Search of defendant’s residence pursuant to a warrant, resulted in the seizure of approximately 3,000 amphetamine tablets and 50 grams of marijuana.

2. August 22,1974. Defendant was arrested.

3. August 22, 1974. Defendant posted bail and was directed, by a police officer, to appear in superior court on August 29,1974, the next scheduled arraignment day.

4. August 29, 1974. Defendant and his attorney appeared in superior court. A deputy prosecutor stated to the court that he did not think charges had been filed. There were no further proceedings before the court.

5. December 13, 1974. An information was filed and served, charging violation of the Uniform Controlled Substances Act, RCW 69.50.401 (c).

6. December 26, 1974. Defendant moved to dismiss the information on the ground that there had not been compliance with CrR 3.3 (b), the speedy trial rule.

7. January 16, 1975. Defendant’s motion to dismiss was denied.

We affirm the denial of the motion to dismiss.

CrR 3.3(b) provides; “A criminal charge shall be brought to trial within 90 days following the preliminary appearance.”

CrR 3.3(f) provides: “A criminal charge not brought to trial as required by this rule shall be dismissed with prejudice.”

Defendant contends that since more than 90 days elapsed both from his arrest and his court appearance, the rules mandate a dismissal. To support his position, defendant points to the comments which were issued by the Criminal Rules Task Force when recommending the proposed rules to the Washington Judicial Council and ultimately to this court. The comment to CrR 2.1 states:

Although the proposed subsection does not specify a time in which the prosecuting attorney must file, it is written in light of the totality of the proposed rules. Proposed Rule 3.3, dealing with speedy trial, states that a defendant shall be tried within 90 days* following the preliminary appearance, which pursuant to proposed amendments to Rule JCrR 2.03, (a) (1), infra, must be -within one judicial day following the arrest .of the defendant.

*Note that a defendant who is incarcerated prior to trial must be tried within 60 days following preliminary appearance. See Proposed Rule 3.3.

The problem in this case exists because the prosecutor did not use the procedure contemplated by the rules, i.e., an appearance in justice court pursuant to JCrR 2.03 which would have triggered the time limits of CrR 3.3 (b).

The rules do not appear to contemplate the situation here present where the defendant is arrested, not brought before a magistrate under JCrR 2.03 and is released on bail, but not charged until substantially later. Again the comments are helpful in pointing out that the procedure used here is not contemplated by the rules. The comment to CrR 3.3 states:

Use of the term “preliminary appearance” is intended to obviate many definitional difficulties in the uses of such terms as “arrest” or “custody”. If the rules proposed by the Task Force are adopted, the preliminary appearance would occur no later than the close of the court’s business on the judicial date next following the day of arrest.

A review of the American Bar Association standards relating to criminal justice indicates that those standards do recognize that one may be arrested and held in custody, on bail or recognizance without being charged. To cover the hiatus we find in our rules, those standards compute the time from the date the charge is filed or from the time the defendant is held to answer if in custody, on bail or recognizance.

We need not decide whether the “held to answer” concept is implicit in our rules, but it is the defendant’s strongest position for it is clear that no charge had been filed within the meaning of CrR 3.3 (b). Even if we adopted the defendant’s theory, he is still not entitled to a dismissal.

The commentary to the ABA standards make clear that only if a defendant continues within the control of the court until the filing of a charge is the time counted from the date when a defendant is held to answer. ABA Standards Relating to Speedy Trial (Approved Draft No. 19 (1968)).

The critical question then was the status of thé defendant after he appeared in court on August 29. At that point he was no longer subject to any restraint. No charge had been filed. His bail bond was conditioned upon his appearance at that time and he appeared. The bail agreement also required defendant to appear at such other times as the court may require. The court made no such requirement. As a matter of law his bond was exonerated. See State v. Fidelity & Deposit Co., 133 Wash. 565, 234 P. 274 (1925), where the court held that a second information was not covered by the bond on an earlier charge which had been dismissed. Here there was no charge to dismiss. If there were any doubt in defendant’s mind as to the status of his bail bond, he had an obligation to move for its exoneration.

Consequently, the time between August 29 and the filing of the information on December 13 did not count in calculating the time limits of CrR 3.3.

The order of the trial court denying dismissal is affirmed.

Finley, Hunter, Wright, and Horowitz, JJ., concur.