State v. Williams

530 P.2d 225, 85 Wash. 2d 29, 1975 Wash. LEXIS 846

Opinions

Rosellini, J.

The appellant was arrested on June 6, 1973, and charged with delivery of a controlled substance. At his preliminary appearance on June 6, 1973, in the Spokane District Court, his bond was set at $5,000. The date of his arraignment in the Superior Court, August 8, 1973, the bond was reduced to $1,000. From and after June 25, 1973, he was held pursuant to a parole hold order issued by the Washington State Board of Prison Terms and Paroles. The appellant was indigent and unable to post the bond set by the court, and thus would not have been able to obtain release from custody had there been no hold placed on him.

The case was set for trial on September 19, 1973, 81 days after the effective date of the new rules of criminal procedure, 105 days from the date of the preliminary appearance and 105 days from the date of his arrest. Since the information was not filed until August 8, 1973, the trial was set within 60 days of the filing of the information and in conformance with the requirements of RCW 10.46.010, which was in effect prior to July 1,1973.

On August 27, 1973, the appellant noted his motion for dismissal, which was based upon the fact that his case had not been set for trial within 60 days following his preliminary appearance, as required by CrR 3.3(c) where the defendant is unable to obtain pretrial release, nor within 60 days following the effective date of the rules. The court denied his motion on September 12, 1973, assigning as its reasons the fact that his case had been set for trial at the earliest jury term after his arrest and that he was not prejudiced by the delay.

The appellant sought review of this order, and moved for a continuance pending review, which was granted. The Court of Appeals, Division Three, certified the case to this court. At this point, the petitioner withdrew the writ and the trial was held on October 11,1973, resulting in a verdict of guilty. A motion for arrest of judgment, or in the alternative a new trial, was denied. An appeal was taken to this court.

There is but one assignment of error, namely, that the court erred in denying the appellant’s motion to dismiss on September 12,1973.

CrR 3.3 provides, in part:

(a) Responsibility of Court. It shall be the responsibility of the court to insure to each person charged with crime a speedy trial in accordance with the provisions of this rule.

(c) Priority Over Civil Cases. Criminal trials shall take precedence over civil. A defendant unable to obtain pretrial release shall have priority and the charge shall be brought to trial within 60 days following the preliminary appearance.

Paragraph (d) which follows lists periods which may be excluded in computing the 60-day period. They do not include periods during which no juries are being called, except as such periods may be excluded on motion of the prosecutor or the court under paragraph (e). Rule 3.3(d) (3).

Paragraph (f) provides:

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

The respondent does not suggest that there was any attempt to comply with the requirements of this rule. Rather it contends that the rules did not apply to the appellant, because they were not in effect when he was arrested, or in the alternative, that he was not prejudiced by the delay.

CrR 1.3 provides:

Except as otherwise provided elsewhere in these rules, on their effective date:

(a) Any acts done before the effective date in any proceedings then pending or any action taken in any proceeding pending under rules of procedure in effect prior to the effective date of these rules and any constitutional right are not impaired by these rules.

It does not appear that any act was done with reference to the setting of the appellant’s case prior to the effective date of the rule. The court and the prosecutor were therefore required to abide by the provisions of CrR 1.3(b), which states:

(b) These rules also apply to any proceedings in court then pending or thereafter commenced regardless of when the proceedings were commenced, except to the extent that in the opinion of the court, the former procedure should continue to be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedures of these rules.

If the trial court delayed the setting of the appellant’s case for one of these reasons, the record does not show it. When the court exercises the discretion granted under these rules, it should make a record of its act and its reason, so that the matter can be subjected to appellate review if proper application is made. It appears to be unquestioned in this case that the trial date was set without reference to the rules, which became effective before the case was set.

Dismissal is required under CrR 3.3 (f) if the case is not brought to trial in accordance with the rule. A showing of prejudice to the defendant is unnecessary. Cases such as State v. Ladiges, 63 Wn.2d 230, 386 P.2d 416 (1963), cited by the respondent, which were decided under the statute which formerly prescribed the rule for speedy trial (RCW 10.46.010), are not applicable. The doctrine of waiver, formerly applied by this court in cases such as State v. Niblack, 74 Wn.2d 200, 443 P.2d 809 (1968), is not entirely abrogated. The defendant must move for dismissal prior to going to trial. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial § 4.1 (Approved Draft, 1968). Annot., 57 A.L.R.2d 302, 336, 343 (1958).

The purpose of the rule is to insure speedy justice in criminal cases, insofar as reasonably possible. If continuances are necessary, they should be sought or entered upon formal motion, with the reasons therefor being made a matter of record.

Since the rule was not complied with in this case and no justification for noncompliance has been shown, we conclude that the court was required to dismiss the action with prejudice. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, supra. The motion for arrest of judgment was therefore improperly denied.

The judgment is reversed and the prosecution is dismissed.

Finley, Hunter, Hamilton, Stafford, Utter, and Brachtenbach, JJ., concur.