Forrest, J. Webster, A.c.j., and Pekelis, J., concur.
Mr. Munos was convicted of one count of delivery of a controlled substance. Mr. Kelly was convicted of one count of burglary in the second degree. Both defendants appeal seeking dismissal for violation of their CrR 3.3 rights to a speedy trial. Since both appeals raise the same fundamental issues, we have consolidated them under cause 25240-2-I and dispose of both in this opinion.
On November 2, 1988, Harriet Monson heard a window slam in Gai's French Baking Company in Seattle where she was about to begin work. A few minutes later, she went to an employee locker area and saw a stranger who then ran away. Ms. Monson called the police after she realized her purse was missing. Later, she identified the appellant from a photo montage.
Charles Kelly was charged on May 9, 1989, with one count of burglary in the second degree. He was arraigned on June 16, 1989, and placed in custody, with August 15, 1989, the last day within the CrR 3.3 limit for Kelly's trial. Trial was set for August 2, 1989, continued to August 4, then continued again to August 11. On August 15, 1989, the 60th day of custody following arraignment, the State moved to continue the trial to August 21, 1989, because Ms. Monson was on vacation in another state and would not be available to testify until then. The judge denied the motion to continue, at which point the prosecutor moved to release Kelly on his personal recognizance. Defense counsel objected, noting that the prosecution had objected to the appellant's release up to that point, there had been no changed circumstances, and the defense was not then seeking a release.
On August 15, 1989, the court issued an order for immediate release on condition that the appellant have no contact with Ms. Monson or the bakery. The court denied appellant's motion to dismiss the charge for failure to comply with the speedy trial requirements of CrR 3.3.
Trial was held on November 7 and 8, 1989, within the 90 day period, excluding the stay granted pending discretionary review. Kelly was found guilty of second degree burglary. This timely appeal followed.
In a tavern bathroom on April 13, 1988, Seattle police officer Charles observed a man handing the appellant, Felizardo Munos, a $100 bill in exchange for some balloons
containing heroin. Munos was arrested and charged on June 24, 1988, with one count of delivery of a controlled substance. Arraignment occurred July 18, 1988. Munos waived his speedy trial rights under CrR 3.3 until October 7, 1988. The trial was scheduled for September 23, 1988, but circumstances delayed trial until October 6, 1988.*fn1
On October 6, the day before expiration of the speedy trial limit pursuant to the speedy trial waiver, the prosecutor stated that a key State witness was in the courtroom but had to leave almost immediately for the airport. Therefore, the prosecutor asked the court to release Munos on his own recognizance and thus extend the speedy trial period for an ...