Appeal from Superior Court, Jefferson County; (92-1-00124-7). Honorable James I. Maddock, Judge. Judgment Date: 12-17-93.
Authored by Charles Z. Smith. Concurring: Barbara Durham, C.j., James M. Dolliver, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders, J.j.
The opinion of the court was delivered by: Smith
SMITH, J. Petitioner Gabriel F. Stewart petitions for review of a decision of the Court of Appeals, Division Two, reversing a Jefferson County Superior Court decision which dismissed a charge against him of delivery of a controlled substance, lysergic acid diethylamide (LSD), because of violation of his speedy trial right under CrR 3.3. We granted review. We affirm the Court of Appeals.
This case presents the question whether Petitioner Stewart's right to a speedy trial under CrR 3.3 was violated when the State, after learning he was in Arizona in August 1993, did not extradite him for arraignment and trial for a felony charge filed in the Jefferson County Superior Court on October 27, 1992 and did not comply with an October 19, 1993 order to set a new trial date within 104 days of Petitioner's arrest and brief detainer in Arizona.
Petitioner Gabriel F. Stewart left Port Townsend, Washington on September 14, 1992 to attend school in Arizona. He was then on probation with the Jefferson County District Court for a 1990 charge of driving while under the influence of alcohol and was supervised by a probation officer, Ms. Barbara Carr. She gave him permission to leave the state to attend school. After Petitioner went to Arizona, he communicated with Ms. Carr by letter and telephone until his release from probation in June 1993.
On October 27, 1992 the Jefferson County Prosecuting Attorney charged Petitioner by information with the felony of delivery of a controlled substance, lysergic acid diethylamide (LSD). *fn1 The information listed Petitioner's last known address as "218 Polk Street, #218, Port Townsend, WA 98368," *fn2 a post office box in the name of Petitioner's mother, Ms. Joan Best. Petitioner received most of his mail at that address when he lived in Port Townsend. On October 27, 1992 the State also filed an affidavit of probable cause and for arrest warrant, stating Petitioner's whereabouts were unknown. *fn3 A warrant for Petitioner's arrest was issued on October 28, 1992. Following standard procedure, the State put the warrant on the national teletype, noting it would only extradite Petitioner from Idaho, Oregon, Montana and the northern part of California. *fn4
Petitioner was in Arizona from September 1992 until September 1993. *fn5 He applied for a job in Arizona in May of 1993. The prospective employer, after running a records check on Petitioner, told him of the outstanding warrant in Jefferson County. Petitioner claims that was the first time he learned about the warrant. He telephoned his mother, an attorney in Port Townsend, and asked her to look into the matter. She telephoned the Jefferson County Prosecuting Attorney's Office and a clerk read Petitioner's charge to her. His mother told Petitioner about the charge several days later. He did nothing about it.
In late August of 1993 a police officer in Arizona stopped Petitioner for illegally crossing a freeway on foot. Petitioner gave him his Washington driver's license as identification. The officer ran a license check which revealed the Jefferson County warrant for Petitioner's arrest. Petitioner states in his declaration the officer then came over to him and "said he was placing [Petitioner] under arrest for a warrant." *fn6 The officer handcuffed him and momentarily placed him in the patrol car. Police dispatch told the officer Washington would not extradite Petitioner. The officer then released him at the scene.
Petitioner returned to Port Townsend, Washington on September 26, 1993. Through his attorney he informed the Prosecuting Attorney of his presence. He appeared in the Jefferson County Superior Court on September 28, 1993 and moved to quash the warrant. The Court denied the motion. Over Petitioner's objection, arraignment was set for October 8, 1993 and the trial date was set for December 27, 1993. *fn7
On October 8, 1993 Petitioner appeared for arraignment and pleaded "not guilty." He also filed a motion to dismiss, claiming the State did not exercise due diligence in advising him of his charge or in securing his presence for arraignment and trial within the time limits under CrR 3.3. *fn8 Petitioner pointed out he was on active probation with the Jefferson County District Court when he was charged; and the State knew or should have known he was in Arizona.
Submitted with Petitioner's motion to dismiss was a declaration by his mother, Ms. Joan Best. She stated Port Townsend is a small town of about 7,000 residents. She asserted she knew all the attorneys in the Jefferson County Prosecuting Attorney's office and they all knew her. She also believed the prosecutor in this case, John Adcock, *fn9 knew Petitioner was her son. She also knew the Jefferson County Sheriff and many of his deputies. She said no one from those offices ever contacted her about her son's charges or asked her concerning his whereabouts. She stated she received much of Petitioner's mail while he was in Arizona and did not recall getting mail for him from the Sheriff or from the Prosecuting Attorney.
Petitioner's mother also described her son's August 1993 detention in Arizona. Responding to Petitioner's motion, the State said it found out in November 1992 from Petitioner's friends that he was attending school in Arizona. The State asserted it declined to extradite Petitioner after he was detained in Arizona in August of 1993 because of the costs involved. On October 15, 1993 a hearing on Petitioner's motion was held in the Jefferson County Superior Court before the Honorable George L. Wood.
In a memorandum opinion and order the court on October 19, 1993 denied Petitioner's motion to dismiss. But the court, relying on State v. Anderson, 121 Wash. 2d 852, 855 P.2d 671 (1993), concluded the State's decision not to extradite Petitioner when he was detained in Arizona constituted a lack of due diligence in obtaining his presence before the Jefferson County Superior Court. *fn10 The court concluded "the State's failure to pursue extradition at that point begins the clock on speedy trial." *fn11 A trial date had previously been set for December 27, 1993. The court directed the parties to submit in writing, not later than October 27, 1993, the exact date of Petitioner's arrest in Arizona. The court then ordered that the trial be set within 104 days of the date of arrest and the December 27, 1993 trial date be reset, if necessary, to conform with that time frame. *fn12 The parties were directed to appear on November 12, 1993 for setting of a new trial date. *fn13
Neither party submitted to the court the date of Petitioner's arrest in Arizona by October 27, 1993. On November 10, 1993, Petitioner forwarded a declaration to the court, stating he had been detained by the police officer in Arizona some time between August 27, 1993 and September 1, 1993. *fn14
No new trial date was set on November 12, 1993. Apparently counsel for both parties were at the courthouse that day, but the matter was not on the calendar. On December 17, 1993 the Honorable James I. Maddock presided over a pre-trial hearing and considered a continuance of the trial. Petitioner's counsel argued the case should be dismissed because of violation of the speedy trial rule. In explaining why a trial date was not set on November 12, he said, "I don't know why we didn't . . . and now it's too late to set one within the time required . . . ." *fn15 The court dismissed the case with prejudice under CrR 3.3(i) because it was not set for trial within 104 days of the date of Petitioner's arrest in Arizona, as required by the October 19, 1993 memorandum opinion and order. The State appealed to the Court of Appeals, Division Two, on January 6, 1994.
On August 10, 1995, the Court of Appeals, Division Two, reversed and remanded for trial. *fn16 Relying primarily on State v. Lee, 48 Wash. App. 322, 738 P.2d 1081 (1987), the court stated Petitioner was properly arraigned on October 8, 1993, within 14 days of his initial appearance before the court on September 28, 1993. By making that statement the court effectively concluded the CrR 3.3 time for trial and arraignment did not start running until Petitioner's initial appearance on September 28, 1993. The court also distinguished Anderson from this case, declaring "factually and legally incorrect" the first trial Judge's Conclusion that the CrR 3.3 trial and arraignment time ran from the date of Petitioner's Arizona arrest; and ...