The opinion of the court was delivered by: Agid
AGID, J. -- The trial court dismissed the State's juvenile prosecution against Lakheea Thomas concluding that a 23-day recess in her fact finding hearing constituted an undue delay. We reverse because the trial court did not find, nor do we, that Thomas was prejudiced by the delay.
At the end of 1994, the State charged Thomas and two other people with first degree robbery. She failed to appear for her arraignment and was eventually detained on a bench warrant on February 6, 1995. In the meantime, Thomas was involved in two more criminal incidents, forgery and a violation of the uniform controlled substances act (VUCSA). Thomas moved for release pending trial on the robbery charge. Concluding that she would probably fail to appear, the court ordered that she remain in custody. The court set the fact finding hearing on the robbery for March 7, 1995, the last day of Thomas' speedy trial period.
On the afternoon of the 7th, Thomas appeared before Judge Mary Brucker. The defense asked Judge Brucker to recuse herself because she had presided over the hearings of Thomas' co-respondents in the robbery case. Judge Brucker recused herself, and the case was immediately reassigned to Judge Michael Spearman. Because the hearing before Judge Spearman began late in the afternoon, he only had time to rule on a defense motion to exclude witnesses and hear both sides' opening statements. Judge Spearman intended to recess the hearing until the following day, but the prosecutor objected because she had another trial scheduled. Judge Spearman was not available later that week or the following week. The prosecutor also told the court that the complaining witness was leaving town on the 16th and would not be back until the 24th. Judge Spearman asked if the parties were available on the 13th. The prosecutor was, but the defense attorney was not. After discussing a few more possible dates, Judge Spearman set the rest of the hearing for March 30. He also scheduled a detention review hearing for March 8 because the defense asked him to reconsider Thomas' release motion if he was going to recess the hearing for a significant amount of time.
At the March 8 hearing, the defense argued that detaining Thomas for another month would subvert the speedy trial rule. Judge Spearman denied her motion for release because her previous failures to appear made it likely she would not reappear for her hearing. He did, however, express concern about proceeding only as far as pretrial motions and opening statements on the speedy trial expiration date and then recessing the trial for 3 weeks over Thomas' objection. He ruled that the hearing would resume on March 10 and told the prosecutor that her office would need to find someone else to prosecute the case since she would not be available.
The State then scheduled a hearing for the following day, March 9, to address the court's ruling. At the March 9 hearing, the prosecutor assigned to the case again informed the court that she would not be available on the 10th. Judge Spearman said he was aware of this, but that he considered it unacceptable to recess the hearing for 3 weeks. He reversed himself when he learned that Judge Brucker had recused herself, ruling that under the speedy trial rule, disqualifying a Judge extends the speedy trial date for 30 days. Judge Spearman concluded that Thomas' speedy trial expiration date was now in April and again recessed the fact finding hearing until March 30.
The court held another hearing the next day on the defense motion to resume the hearing that day. The defense argued that the court had misinterpreted CrR 3.3, the speedy trial rule, and moved to dismiss the case. The court denied the motion to proceed that day because there were no witnesses available and took the motion to dismiss under advisement. It again denied the defense motion for Thomas' release.
The court held the next hearing on March 23. At that hearing, the court ruled that although Thomas' trial had begun before her speedy trial period expired, it had erred in granting a 23-day "continuance" to accommodate the complaining witness' schedule. The court noted that because it was available as early as March 17, the hearing should have resumed then and concluded that there had been undue delay in proceeding with Thomas' trial. It then dismissed the robbery charge with prejudice.
A juvenile hearing must begin within 60 days of the juvenile's arraignment if she is not in custody. If the juvenile is in custody and would be at liberty but for the current charges against her, the hearing must begin within 30 days of her arraignment:
The adjudicatory hearing on a juvenile offense shall begin within 60 days following the juvenile's arraignment in juvenile court on the charges contained in the information. If the alleged juvenile offender is held in detention pending the adjudicatory hearing and would be at liberty but for the current charges, the hearing shall begin within 30 days following the juvenile's arraignment in juvenile court on the charges contained in the information. JuCR 7.8(b). The trial court dismissed Thomas' prosecution on the ground that the 23-day "continuance" in her hearing violated her right to a speedy trial, even though her hearing had started on March 7, the last day of her speedy trial period. As a threshold matter, we conclude that the court actually granted a recess in the hearing, not a continuance, because Thomas' hearing had already started. This is not just a question of semantics because, once her hearing began within the speedy trial period, there could be no violation of her procedural rights under JuCR 7.8(b). We therefore analyze the trial court's dismissal ruling under the only other theory available to address delay in a proceeding, the constitutional right to a speedy trial. See State v. Greenwood, 57 Wash. App. 854, 860, 790 P.2d 1243 (1990) (if court rules governing speedy trial do not apply to a delay in prosecution, the sixth amendment to the U.S. Constitution and art. 1, sec. 22 of the Washington Constitution provide the defendant's ultimate safeguard), aff'd in part, rev'd in part, 120 Wash. 2d 585, 845 P.2d 971 (1993).
To establish a violation of her constitutional right to a speedy trial, a defendant must show that she has been prejudiced by the delay. Greenwood, 57 Wash. App. at 860. The trial court did not indicate whether it found a violation of Thomas' constitutional right to a speedy trial when it dismissed her case, nor did it address whether she had been prejudiced by the delay. We assume that it thought she was prejudiced by the amount of time she spent in custody waiting for her robbery hearing to resume because we can discern no other basis for dismissing the case. It is clear from the record, however, that this was an improper basis for dismissal because Thomas would have been in detention anyway during the 23-day delay in her robbery hearing. While the robbery charge was pending, Thomas was also detained on a forgery charge and a VUCSA, and the court had denied her motions for release from detention. She pleaded guilty to the two other charges, and the court set the Disposition dates in April to avoid a conflict with the robbery hearing. As a result, when the trial court dismissed the robbery charge, Thomas remained in custody on the other charges. There is no indication that the trial court would have released her until long after it completed the robbery hearing. A trial court's authority to dismiss a prosecution is discretionary, and we review it only for manifest abuse of discretion. Here, we must conclude that the trial court abused its discretion when it dismissed Thomas' prosecution because there is absolutely no showing that she was prejudiced by the delay in her hearing. See State v. Blackwell, 120 Wash. 2d 822, 830, 845 P.2d 1017 (1993) (discussing the abuse of discretion standard as applied to dismissal orders).
The trial court also erred when it ruled that the schedules of the complaining witness and the prosecutor were not proper grounds for a 23-day recess. Thomas argues this ruling was proper under State v. Kokot, 42 Wash. App. 733, 713 P.2d 1121, review denied, 105 Wash. 2d 1023 (1986). We disagree. The trial court in Kokot continued the defendant's trial for 27 days to accommodate a witness' hunting trip and court congestion. On appeal, a majority held that the trial court had abused its discretion. Although the majority discussed the witness' hunting trip, it is clear that the court reversed because the trial court had improperly granted a continuance based on court congestion: "once the court had decided to continue the matter, the complaining witness' hunting trip was a factor in deciding to continue it . . ., but court congestion, not the hunting trip, was the actual reason for the continuance." 42 Wash. App. at 737. Kokot does not, as Thomas argues, stand for the proposition that a trial court may never consider a witness' vacation schedule in deciding whether to continue a trial. See State v. Grilley, 67 Wash. App. 795, 799, 840 P.2d 903 (1992) ("Kokot does not foreclose the discretion of a trial court to consider a scheduled vacation of the State's key witness when ...