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Washington v. Tomal

filed: June 28, 1996.

STATE OF WASHINGTON, APPELLANT,
v.
TOMMY TOMAL, RESPONDENT.



Superior Court of Pierce County. Superior Court Docket No. 89-1-01985-1. Order Denying Motion to Dismiss RALJ Appeal. Date Filed In Superior Court: April 15, 1994. Superior Court Judge Signing: D. Steiner. District Court Name: Pierce County Dist. Court #2, Gig Harbor of Pierce County. District Court Docket No. 890225. Order Denying Defendant's Motion to Dismiss. Date Filed In District Court: 6/20/89. District Court Judge Signing: John A. Paglia.

Written By: Houghton, Acj, Concurred IN By: Seinfeld, CJ, Morgan, J.

Author: Houghton

HOUGHTON, J. -- The State appeals the superior court's denial of its motion to dismiss Tommy Tomal's appeal under RALJ 10.2(a) for want of prosecution on grounds that no good cause was shown for Tomal's delay in pursuing his appeal. Finding that no good cause was shown, we reverse and remand for dismissal of the appeal.

FACTS

Tomal was tried for driving while intoxicated pursuant to RCW 46.61.502 on May 10, 1989. Tomal was found guilty and judgment was entered on June 20, 1989. Tomal received a 364-day suspended sentence, which was stayed pending appeal. Tomal filed a notice of appeal to the superior court on June 22, 1989.

Thereafter, nothing happened on the case until November 4, 1993, when the State filed a motion to dismiss. The motion was brought pursuant to RALJ 10.2(a) for want of prosecution of the appeal. The State argued that Tomal was required to file a brief and transcript of the lower court proceedings within 45 days of filing a notice of appeal and that, because there had been no action of record for 90 days, Tomal's appeal should be deemed abandoned and dismissed. Tomal filed a brief on November 19, 1993, and the State withdrew its motion.

The State renewed its motion to dismiss on March 23, 1994. The State argued that under RALJ 7.2(a), Tomal's brief and transcript of proceedings were due on August 6, 1990, and that as of March 22, 1994, Tomal had not filed a transcript.*fn1

A hearing on the motion to dismiss the RALJ appeal was held on April 15, 1994. An associate in defense counsel's office prepared an affidavit on April 14, 1994. The affiant stated that he obtained the trial tape recordings on April 14, 1994, and that his office did not have the proper equipment for transcription and he was unable to rent the necessary equipment. He further stated that he contacted the district court and learned that it would need one to two weeks to transcribe the tapes, and that "my hands are totally tied."

Another associate of defense counsel's law firm appeared at the hearing and presented the affidavit. The court inquired into whether any good cause was shown in the affidavit and asked why it had taken nearly five years to file the transcript, stating, "I have to know whose fault it is. Is this [counsel]'s fault or the client['s]?" Defense counsel replied that failure to file the transcript along with the brief was "an oversight" and that once they learned of it, they made every effort to obtain the transcript. The trial court replied, "nothing in here about good cause" and acknowledged that an attorney is the representative of the client, but then stated, "doesn't look like the client contributed to this. It was pure attorney error." The trial court granted Tomal two weeks to obtain the transcripts and denied the State's motion to dismiss the appeal. We granted the State's motion for discretionary review.

ANALYSIS

The State contends that the court erred in denying its motion to dismiss the appeal for want of prosecution. It asserts that Tomal abandoned his appeal because there had been no action of record for 124 days between the filing of his brief on November 19, 1993, and the State's motion to dismiss on March 23, 1994, and that there was no showing of good cause for the delay. The State further asserts that Tomal was on notice that he needed to provide a transcript, and that his failure to obtain the transcript was not inadvertence, but volitional conduct and a conscious disregard of the appellate rules.

A motion to dismiss an appeal for want of prosecution is reviewed under an abuse of discretion standard. City of Seattle v. Keyes, 32 Wash. App. 940, 943, 650 P.2d 1136 (1982), review denied, 98 Wash. 2d 1014 (1983). Abuse of discretion occurs upon a clear showing that the court's decision is manifestly unreasonable or exercised on untenable grounds, or for untenable reasons. City of Seattle v. Knutson, 62 Wash. App. 31, 33, 813 P.2d 124 (1991).

RALJ 10.2(a) provides that:

The superior court will, on motion of a party or on its own motion after 14 days' notice to the parties, dismiss an appeal of the case . . . for want of prosecution if the party appealing has abandoned the appeal. Unless good cause is shown, an appeal will be ...


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