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State v. Simon

December 30, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
WILLIAM TERRELL SIMON, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 94-1-00031-7. Date filed: 05/08/96. Judge signing: Hon. Michael F. Moynihan.

Authored by. H. Joseph Coleman. Concurring: Walter E. Webster

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- William Simon argues that the lower court erred in denying his motion to dismiss armed robbery charges because the State violated his speedy trial rights under CrR 3.3 and the Interstate Agreement on Detainers. We hold that the State's failure to inquire into Simon's whereabouts or ability to stand trial in Washington for nearly a year while Simon was in Oregon prison and available for trial in Washington constitutes a failure to exercise the required due diligence. We therefore reverse and dismiss.

Facts

On December 13, 1993, Simon was arrested in Douglas County, Oregon. California had three outstanding warrants on Simon and immediately placed a hold on him. Douglas County informed Whatcom County that Simon had a number of credit cards and identification belonging to victims of a Whatcom County armed robbery.

Detective Nick Childers of Whatcom County went to Oregon and interviewed Simon. After the interview, Childers informed Simon that Whatcom County would be pursuing robbery charges against him. Childers then also learned that Simon was facing more serious charges in California for which he faced a possible life sentence.

On January 6, 1994, Simon was charged with robbery in the first degree for the Whatcom County robbery. Whatcom County issued a warrant for Simon's arrest on January 11, 1994, and faxed it to the Douglas County sheriff's office. The fax asked the sheriff to place a hold on Simon and to advise if he would sign a waiver of extradition. There is, however, no evidence that Simon was notified of the warrant, and he later signed an affidavit stating that he was not informed of any outstanding warrant or that charges had actually been filed.

In late February 1994, Simon was convicted in Oregon and sentenced to 30 months in jail for charges arising out of his Douglas County arrest. Whatcom County learned this on March 15, 1994.

Because the California charges were more serious than Washington's, Whatcom County decided to defer to California, permitting it to pursue its detainer on Simon first. The State intended to file a detainer in California if Simon received a lengthy sentence or in Oregon once the California matter had concluded.

On March 31, 1994, California filed a detainer against Simon. On April 2, 1994, Simon requested speedy Disposition of this detainer and requested the Oregon authorities to inform him if there were any other detainers filed against him. At that time, there were no others.

In December 1994, Simon was transported to California, where the charges against him were dismissed. On December 29, 1994, he was returned to the Oregon Department of Corrections to finish serving his sentence.

From March 1994 to September 1995, there was no communication between Whatcom County and California or Oregon. Whatcom County therefore did not know that California had dismissed its charges and that Simon had returned to prison in Oregon. A September 1995 internal Whatcom County prosecutor's office memo specified an intention to extradite Simon whenever he was released or before his release.

On December 13, 1995, the Whatcom County sheriff's office requested the Oregon Department of Corrections to place a hold on Simon. Simon's scheduled release date from the Oregon prison was December 15, 1995.

The trial court concluded that the State acted in good faith and exercised due diligence in obtaining the presence of Simon, that deference to California was not a violation of its good faith and due diligence ...


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