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State v. Thomas

December 23, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ANDREW LLOYD THOMAS, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 891013406. Date filed: 01/12/94. Judge signing: Hon. Joseph Thibodeau.

Authored by C. Kenneth Grosse. Concurring: Walter E. Webster, Ronald E. Cox.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Andrew Thomas appeals his conviction of one count of convicted felon in possession of a pistol. He claims the trial court erred by denying his CrR 3.3 motion to dismiss because the State failed to arraign him on that charge until after the speedy trial period had expired.

He also claims the trial court erred by denying his CrR 3.6 motion to suppress evidence seized during a search of his residence, conducted nine days after the search warrant was issued, because the warrant was stale at the time it was executed.

We affirm, finding that under CrR 3.3(d)(4), Thomas was brought to trial within the speedy trial period. We further find that the warrant was properly executed within 10 days of its issuance and that the trial court did not err by denying Thomas's CrR 3.6 motion to suppress.

This opinion will not be published. The facts are well known to the parties and will be mentioned only insofar as necessary to an understanding of this opinion.

I

Thomas claims the computation of his speedy trial period is governed by CrR 3.3(c)(1), under which he had to be arraigned not later than 14 days after the date the information was filed, and he had to be brought to trial not later than 90 days after arraignment. Under this statute, the computation is as follows: The amended information was filed on March 26, 1990; Thomas's first appearance in court following that date was on May 4, 1990. Arraignment had to be not later than May 18, 1990. Excluding the period from May 30, 1990 to June 25, 1993, while the suppression order was on appeal, the time for speedy trial expired on September 11, 1993. Thus, Thomas claims his arraignment on October 4, 1993 was beyond the speedy trial period and, therefore, the charge must be dismissed. Alternatively, Thomas claims the same result must be reached using principles of constructive appearance and arraignment. *fn1 We disagree with both arguments.

Thomas's computation of the speedy trial period ignores the fact of the appeal of the suppression ruling. When an appeal is involved, the rules specify that the provisions of CrR 3.3(d)(4) apply, notwithstanding the provisions of CrR 3.3(c). *fn2

CrR 3.3(d)(4) provides:

If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in superior court, with notice to both parties of any such appearance, which next follows receipt by the clerk of the superior court of the mandate or other written order, if after such appearance the defendant is detained in jail, or not later than 90 days after such appearance if the defendant is thereafter released whether or not subject to conditions of release.

The present case fits within this subsection inasmuch as the Supreme Court remanded the matter "for further proceedings" after accepting review of this court's ruling reversing the trial court's suppression order. *fn3

Application of this subsection requires computation of the time within which Thomas had to be brought to trial based on the date of receipt of the mandate. The date of arraignment is not a factor in the computation.

Under CrR 3.3(d)(4), Thomas had to be brought to trial within 90 days of an appearance by him or on his behalf in superior court following the clerk's receipt of the Supreme Court's mandate. *fn4 Thomas's first appearance in court following issuance of the mandate was on July 20, 1993. *fn5 Thus, he had to be brought to trial not later than 90 days after such appearance, or not later than October 18, 1993. In fact, trial began on October 18, 1993. Thus, Thomas's argument that he was ...


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