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Washington v. Carson

filed: March 14, 1996.

STATE OF WASHINGTON, RESPONDENT
v.
RICHARD CARSON, PETITIONER



Appeal from Superior Court, Okanogan (92-1-00004-9) County; Honorable James Thomas, Judge.

Smith, J., Durham, C.j., Dolliver, Guy, Johnson, Talmadge, J.j., Pekelis, J.p.t.,*fn* (concurring by separate opinion), Madsen, Alexander, J.j., concurring. Sanders, J. (did not participate).

Author: Smith

En Banc

SMITH, J.--Petitioner Richard Carson seeks review of an unpublished decision by the Court of Appeals, Division Three, affirming his conviction of rape in the first degree in the Superior Court of Okanogan County and a ruling by the trial court which denied Petitioner's motion to dismiss, even though his case was not brought to trial within the sixty days required by the "speedy trial" rule, Superior Court Criminal Rule 3.3. We granted review. We affirm.

QUESTIONS PRESENTED

The questions presented in this case are: (1) whether the trial court acted properly in retroactively granting multiple five-day trial extensions under CrR 3.3, the "speedy trial" rule; and (2) whether Petitioner waived his right to a speedy trial by not objecting when his trial did not begin on the scheduled trial date and the speedy trial period expired before another trial date was set.

STATEMENT OF FACTS

On January 8, 1992, Petitioner Richard Carson was charged in the Okanogan County Superior Court with rape in the first degree.*fn1 The case came to trial before a jury on May 15, 1992.*fn2 The jury could not agree on a verdict and the trial judge, the Honorable James R. Thomas, declared a mistrial on May 22, 1992.*fn3 On June 4, 1992, Judge Thomas signed an order setting a new trial date for July

20, 1992.*fn4 The court administrator advised counsel and the judge there might be a speedy trial problem with the trial date.*fn5 The matter was discussed, but no further steps were taken.*fn6 After discussion, Judge Thomas was under the impression the speedy trial problem had been "taken care of."*fn7

Petitioner Carson's case was not brought to trial on July 20, 1992 as scheduled.*fn8 Neither party sought a continuance and none was granted. Defense counsel, the deputy prosecuting attorney and the trial judge began trial in an unrelated case, State v. Smith, on July 21, 1992.*fn9 That case was not completed until August 3, 1992.*fn10

On August 3, 1992, the deputy prosecuting attorney assigned to Petitioner's case set it for a hearing which was held that afternoon.*fn11 The prosecutor was then of the opinion the speedy trial period began to run on June 4, 1992, and not May 22, 1992, and 12 that it expired on August 3, 1992.*fn12 Defense counsel at the hearing moved to dismiss because the state had not brought the case to trial within the sixty days required by CrR 33.3.*fn13 Defense counsel stated he believed the speedy trial period began to run on the date the mistrial was declared, May 22, 1992, and expired on July 20, 1992.*fn14 Both the prosecutor and the trial judge

then expressed their belief that the sixty-day period expired on July 21, 1992.*fn15

Defense counsel indicated he did not object to the initial trial date setting for July 20, 1992 because it was within the sixty-day limit under CrR 3.3.*fn16 He also said he had no obligation to call to the attention of counsel for the state that the speedy trial period might be running.*fn17 Defense counsel stated "It's been my understanding all along that the speedy trial period commences as of the date of the mistrial."*fn18

The prosecutor asked the court to grant a retroactive continuance based upon unavoidable or unforeseen circumstances as allowed by CrR 3.3(d)(8).*fn19 The prosecutor also stated that all discussions with the court administrator, Ms. Peggy Melvin, about a trial date for the case centered on Ms. Melvin's belief that the speedy trial period expired on August 5, 1992. He argued "[Ms. Melvin] can also testify that everybody was operating under the mistaken belief that the defendant's speedy trial ran August 5th instead of July 21st."*fn20 After hearing argument of counsel, the court denied Petitioner Carson's motion to dismiss and granted retroactive five-day continuances to August 5, 1992, the date set for trial.*fn21

On August 5, 1992, defense counsel appeared before the court near the end of the court day and moved for a continuance. He argued that he needed more time to prepare the case and to secure a witness.*fn22 Defense counsel stated his client was willing to waive his speedy trial rights

through the middle of October 1992.*fn23 The trial court denied the motion for continuance. Petitioner Carson's second trial began the following morning on August 6, 1992.*fn24

The jury found Petitioner Carson "guilty" of rape in the first degree on August 11, 1992.*fn25 The court then sentenced him to 102 months.*fn26 The Court of Appeals, Division Three, affirmed the trial court in an unpublished opinion.*fn27 This court granted review on May 10, 1995.

Discussion

Petitioner Carson assigns error to the trial court's denial of his motion to dismiss the case based upon a violation of the "speedy trial" rule, CrR 3.3.

SPEEDY TRIAL EXPIRATION DATE

Petitioner argues that the speedy trial period expired on July 20, 1992.*fn28 He claims the day the trial court declared a mistrial, May 22, 1992, should be included in calculating the sixty-day period for beginning a trial under CrR 3.3(d)(3).*fn29 In making this argument, he compares CrR 3.3(c)(1) to CrR 3.3(d)(3), both of which identify sixty-day periods.

CrR 3.3(c)(1) provides in relevant part "[a] defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment."

*fn30 CrR 3.3(d)(3) provides that the defendant "shall be brought to trial not later than 60 days after the oral order of the court [declaring a mistrial] if the defendant is thereafter detained in jail . . . ."*fn31 Petitioner claims the difference in the language between the two rules is that one indicates that counting begins after the "date" of arraignment, and that the other indicates it begins after the "oral order," thus indicating that the date of the oral order granting a mistrial is counted.*fn32 Petitioner cites no authority for this argument. Nor is the argument logical.

CrR 3.3(d)(3) provides:

(d) Extensions of Time for Trial. The following extensions of time limits apply notwithstanding the provisions of section (c):*fn33

(3) Mistrial and New Trial. If before verdict the superior court orders a mistrial, the defendant shall be brought to trial not later than 60 days after the oral order of the court if the defendant is thereafter detained in jail . . . .

(Emphasis added.)

"When interpreting court rules, the court approaches the rules as though they had been drafted by the Legislature. We thus apply principles of statutory construction in interpreting CrR 3.3."*fn34 Under general principles of statutory construction, when interpreting a rule, the court must give effect to the plain meaning of the rule's language.*fn35 CrR 3.3(d)(3) plainly states that trial must be held within sixty days after the trial court orders a mistrial. Logically,

the speedy trial period begins to run from the date the trial court orally declares a mistrial. The first day counted against the sixty-day trial period is the day after the oral order.*fn36 Petitioner's argument to the contrary is without merit.*fn37 Respondent State correctly asserts the speedy trial period expired on July 21, 1992 instead of on July 20, 1992 as claimed by Petitioner.*fn38

TRIAL EXTENSIONS UNDER CrR 3.3(d)(8)

Petitioner contends the trial court had no authority to grant multiple trial extensions retroactively under CrR 3.3(d)(8).*fn39

Unavoidable or Unforeseen Circumstances

Specifically, Petitioner claims there were no unavoidable or unforeseen circumstances beyond the control of the court or the parties to justify the court's granting trial extensions under CrR 3.3(d)(8).*fn40 He argues the speedy trial problems were not unforeseen or unavoidable because the court administrator had informed all counsel and the judge of the potential speedy trial problem; other attorneys were available to try the case; the court could have obtained other judges or courtrooms; ...


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