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State v. Montezuma

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
NATALAO GALLADO MONTEZUMA, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-03496-5. Date filed: 03/27/95. Judge signing: Hon. Patricia H. Aitken.

PER CURIAM - Natalao Montezuma appeals from the judgment and sentence entered following his convictions of delivery of a controlled substance and possession with intent to deliver. Montezuma argues that his convictions should be reversed because the trial court did not have jurisdiction to reconsider its oral ruling dismissing the charges, the evidence obtained following his arrest should have been suppressed and his CrR 3.3 right to a speedy trial was violated. We hold that the trial court had jurisdiction to reverse its oral ruling because the ruling was not final, the search of Montezuma was a lawful search incident to arrest supported by probable cause, and Montezuma's CrR 3.3 right to a speedy trial was not violated because the speedy trial clock restarted when Montezuma was arrested on the bench warrant and brought before the court. Accordingly, we affirm.

FACTS

On October 11, 1993, Seattle Police Officers Andrew Hall and Michael Corner were on surveillance duty in the area of Pike Place Market as part of a "see-pop" operation. At approximately 3:00 p.m., Hall was at his observation point on the third level of the atrium when he saw two men enter the atrium, walk a couple of paces down the ramp and then face each other. The two men then exchanged cash for "a small white tissue colored bindle." Based upon his experience, Hall suspected that he had witnessed a narcotics transaction.

Following the transaction, the men walked out of the atrium with the purchaser walking one or two steps ahead of the seller. The entire transaction lasted no more than 30 seconds. Hall lost sight of the men as they exited the atrium doorway.

While Hall was observing the transaction, he broadcasted a description of the individuals via radio to the other officers involved in the operation. The seller was described as a "Hispanic male with bushy hair, long in the back. Wearing a black T-shirt, black pants, and sort of white athletic shoes." The purchaser was described as a "white male with brown hair and a greenish-colored jacket and brown pants." After giving the description, Hall left his observation post, got on his bicycle and pedaled to the northeast corner of First and Pike where he saw the seller, later identified as Montezuma, in the custody of Officer Donald Hargrove. Hall confirmed that Hargrove had arrested the correct person. Approximately one and one half minutes had passed from the time Hall left his observation post above the atrium.

Officer Hardgrove had been stationed in an alley off of First and Union when he heard Officer Hall's radio transmission describing the suspects. Upon hearing the description, Hardgrove and his partner rode their bicycles out of the alley and onto Union. They turned onto First Avenue and observed a person matching the description of the seller. Upon contacting Montezuma, Hardgrove immediately grabbed Montezuma's arms and handcuffed him. In a subsequent search, Hardgrove found crumpled bills, eight bindles of cocaine and a pager. The purchaser was also arrested and searched. A bindle of cocaine was recovered from him as well.

Montezuma was convicted of one count of delivery of a controlled substance and one count of possession with intent to deliver a controlled substance. Standard range sentences were imposed and Montezuma appealed.

DECISION

MOTION FOR RECONSIDERATION

On January 7, 1994, Montezuma's trial began. Following a pretrial hearing, Judge McCullough orally ruled that the police lacked probable cause to arrest Montezuma and suppressed the evidence recovered from Montezuma. Judge McCullough signed a notice to the King County Jail to release Montezuma from custody. No written order of dismissal was ever entered.

The State filed a motion for reconsideration. Exercising an abundance of caution, the State also filed a notice of appeal to preserve its right to appellate review. In the meantime, the parties attempted to obtain written findings and Conclusions and an order of dismissal from the trial court. Because of the delays encountered in perfecting the trial court record, the State ultimately withdrew its appeal as premature. The motion for reconsideration was finally heard by Judge McCullough on June 27, 1994. Judge McCullough reversed his prior oral ruling and reinstated the charges against Montezuma.

Relying on State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex. Cr. App. 1984), Montezuma argues on appeal that Judge McCullough lacked jurisdiction to reverse himself. This argument fails.

Denson states that when a trial court sustains a motion to dismiss an information, the accused is discharged, and, since there is no case pending against the accused, the trial court no longer has jurisdiction. Denson at 898-99. Denson, however, is inapplicable to Montezuma's case.

Montezuma concedes in his brief that Judge McCullough never entered a final written order of dismissal. *fn1 In Denson, however, a written order of dismissal was apparently entered by the trial court. Denson does not stand for the proposition that an oral ruling of dismissal terminates the trial court's jurisdiction. Furthermore, that proposition would be inconsistent with the well established principle that a trial Judge has the discretion to reverse an oral order of dismissal. State v. Collins, 112 Wash. 2d 303, 308, 771 P.2d 350 (1989); State v. Aleshire, 89 Wash. 2d 67, 568 P.2d 799 (1977); Hubbard v. Scroggin, 68 Wash. App. 883, 887, 846 P.2d 580, review denied, 122 Wash. 2d 1004, 859 P.2d 602 (1993). As stated in Collins, "a ruling is final only after it is signed by the trial Judge in the journal entry or is issued in formal court orders." Collins at 308. A trial court's oral opinion is considered to be no more than an expression of its informal opinion at the time it is rendered. Collins ...


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