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Washington v. Osloond

February 25, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
MARK ANDREW OSLOOND, APPELLANT



Scholfield, J. Pekelis and Forrest, JJ., concur.

Author: Scholfield

Mark A. Osloond appeals his conviction for burglary in the second degree. We affirm.

Facts

On June 16, 1988, Osloond was charged by information with the crime of burglary in the second degree, committed at 1413 14th Avenue, Seattle, the Hombres Saloon. A stipulation to appoint Janice Niemi as a judge pro tempore was signed by both the deputy prosecuting attorney and Osloond's counsel of record, and an order appointing Niemi was signed by the presiding judge and entered on May 3, 1989.

A trial on stipulated facts, based on the police reports, was conducted before Judge Niemi, and she found Osloond guilty beyond a reasonable doubt of burglary in the second degree. Osloond was sentenced to 3 months' confinement, with credit for time served. This appeal timely followed.

Stipulation to Judge Pro Tempore

Osloond argues that because the record does not show that he consented to the appointment of the judge pro tempore, either orally or in writing, the court was without jurisdiction to hear his case.

Article 4, section 7 of the Washington Constitution states the following concerning the appointment of judges pro tempore:

A case in the superior court may be tried by a judge, pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court and sworn to try the case.

(Italics ours.) RCW 2.08.180 repeats the language of Const. art. 4, § 7 verbatim.

[1] Osloond does not argue that his attorney signed the stipulation without his consent. Rather, Osloond's argument is merely that he did not personally sign the stipulation or state his consent on the record. Const. art. 4, § 7 and/or RCW 2.08.180 do not state that a defendant's additional personal consent is necessary.

In State v. Sain, 34 Wash. App. 553, 663 P.2d 493 (1983), defense counsel orally agreed to trial before a judge pro tempore, without obtaining his clients' consent. After withdrawal of the original counsel, new counsel signed a written stipulation agreeing to a judge pro tempore, apparently with the understanding that the issue of his clients' consent could be raised later. Despite the fact that one of the clients refused to consent or sign the stipulation, the judge pro tempore refused to recuse himself. Sain, at 557.

In holding that the absence of one defendant's ratification of his counsel's consent to the appointment of the judge pro tempore deprived the court of its jurisdiction to hear the case, the Sain court noted that it was clear that Sain had refused to give his written consent to having his case tried by a judge pro tempore and that such consent should have been obtained before the judge pro tempore took any action in the case. Sain, at 557.

Sain is not on point. Osloond does not allege that his attorney consented to the appointment of the judge pro tempore without authority to do so. He merely argues that neither his signature nor a record of his oral consent is

present in the record. This assertion is insufficient to challenge the validity of the stipulation to the ...


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