State v. Hunnel

760 P.2d 947, 52 Wash. App. 380, 1988 Wash. App. LEXIS 532
CourtCourt of Appeals of Washington
DecidedSeptember 6, 1988
Docket9913-6-II
StatusPublished
Cited by28 cases

This text of 760 P.2d 947 (State v. Hunnel) 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.

Bluebook
State v. Hunnel, 760 P.2d 947, 52 Wash. App. 380, 1988 Wash. App. LEXIS 532 (Wash. Ct. App. 1988).

Opinions

Petrich, J.

The State appeals from a pretrial order dismissing a charge of first degree arson with prejudice for a violation of the time of trial rule, CrR 3.3, 93 Wn.2d 1123 (1980). We conclude that the defendant was not brought to trial within the prescribed time limits. Therefore, we affirm.

Hunnel was interviewed by the Kitsap County Sheriff's Office on January 19, 1985, upon referral by Child Protective Services. During the interview, he confessed to setting fire to a woodshed on his property in which he had placed his three children. This incident occurred August of 1982.

Hunnel was not arrested at that time, but gave the detective his Port Orchard address and contact telephone numbers of his mother and sister. He also informed the detective of his employment at Puget Sound Naval Shipyard.

Shortly before the January 19 interview, Hunnel and his wife had separated. They were divorced on March 22, 1985. Hunnel quit his job and moved to his father's home in Oregon approximately 1 week after the interview of January 19. On February 14, 1985, he went to a United States [382]*382Farm Administration office in Washington and relinquished his interest in the family home. He also filed a change of address form at this time, listing his wife's parents' address as his forwarding address. He did not notify the post office of any further address changes.

Altogether, Hunnel was absent from the state of Washington for approximately 6 months. He returned to Washington in June of 1985 and either stayed in a camper on his mother's property or at a friend's home in Poulsbo. During this period, his wife contacted him six to eight times.

On February 21, 1985, Hunnel was charged by information filed in superior court with first degree arson. A motion and affidavit for his arrest were sworn out the same day. The record is devoid of any evidence that the warrant was placed in the national warrant system or that any attempts were made to serve the warrant before his arrest 11 months later on January 7, 1986.

The trial court heard testimony on Hunnel's motion to dismiss for violation of CrR 3.3. On April 3, 1986, the court entered an oral decision dismissing the case. The State's motion to reconsider was denied and a written order of dismissal, findings of fact, and conclusions of law were entered on April 25,1986. The findings of fact are not challenged in this appeal.

When findings of fact are required by rule or statute, unchallenged findings are verities on appeal. State v. Harris, 106 Wn.2d 784, 790, 725 P.2d 975 (1986), cert. denied, 94 L. Ed. 2d 781 (1987); State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). Although use of formal findings and conclusions is the preferred practice to insure that the trial court has properly dealt with all of the issues below and to allow for a meaningful review of that court's decision, State v. Agee, 89 Wn.2d 416, 573 P.2d 355 (1977), we can find no provision requiring findings in CrR 3.3. It is questionable whether a proceeding for dismissal under CrR 3.3 is a proceeding "tried upon facts" requiring the entry of findings of fact. CR 52(a)(1). Findings of fact are not [383]*383required in decisions on motions. CR 52(a)(5)(B). Nevertheless, even though findings of fact may not be required if the court enters findings of fact on disputed evidence or inferences drawn from such evidence, the unchallenged findings are considered as verities on appeal. State v. Williams, 16 Wn. App. 868, 560 P.2d 1160 (1977). Here, the trial court's findings which resolved disputed inferences from the evidence are accepted as verities.

CrR 3.3 generally requires that for matters filed directly in superior court, the 60- or 90-day period during which the defendant must be brought to trial begins on the date of arraignment. CrR 3.3(c)(1). When a delay not contemplated by the rule occurs, and the accused is amenable to process, the speedy trial time under CrR 3.3 is deemed to operate from the time the information is filed. State v. Striker, 87 Wn.2d 870, 875, 877, 557 P.2d 847 (1976). The rule allows for the exclusion of certain time periods in computing the time for trial. CrR 3.3(g). A criminal charge not brought to trial within the time limits of the rule is subject to dismissal with prejudice. CrR 3.3(i).

On appeal, the State argues that the event from which the time for trial should be computed in this case is the date of arraignment because: (1) Hunnel was not amenable to process during the long delay between the filing of the information and his arrest and arraignment; and (2) the long delay was the result of Hunnel's own fault or connivance. In the event the time for trial must be computed from the filing of the information, the State then argues that the time during which the defendant is unavailable for trial should be excluded in computing the time limit within which trial must be held under the rule.

Amenability to Process

The State argues that the 11-month delay between the filing of the information and Hunnel's arrest was justified because he was not amenable to process. The term "amenable to process" is defined as whether a person is liable or subject to law. State v. Carpenter, 94 Wn.2d 690, 693, 619 [384]*384P.2d 697 (1980). According to the trial court's finding, " [Hunnel] travelled back and forth from Oregon to Washington from January of 1985 through approximately June 15, 1985 and thereafter resided within the state of Washington." Hunnel was not amenable to process during his absence from Washington. State v. Lee, 48 Wn. App. 322, 738 P.2d 1081 (1987). However, he was subject to the laws of Washington after June 15, 1985.

Since Hunnel was amenable to process continuously from June 15, 1985, to the date of his arrest and arraignment in January 1986, the delay is one not contemplated by the rule. The Striker rule applies to this case, causing the CrR 3.3 time to commence with the filing of the information, February 21, 1985, absent an exception to the Striker rule or an exclusion of the time periods by the court rule CrR 3.3(g).* 1 234567See State v. Baxter, 45 Wn. App. 533, 537, 726 P.2d 1247 (1986).

Fault or Connivance

An exception to the Striker rule exists when the delay is caused by the fault or connivance of the defendant. Striker, 87 Wn.2d at 872; Carpenter, 94 Wn.2d at 694. The State [385]*385contends that this exception applies in the instant case because the delay in bringing Hunnel to trial was Hunnel's fault. The unchallenged findings do not support this contention. Finding of fact 4 states:

That during the latter half of 1985, from June 15th thereon, he resided with his mother in Bremerton, WA. and Mr. James Davis in Poulsbo, WA. Throughout that period of time he could be reached either through his mother or Mr.

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Bluebook (online)
760 P.2d 947, 52 Wash. App. 380, 1988 Wash. App. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunnel-washctapp-1988.