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State v. Branstetter

February 18, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
MATTHEW DAVID BRANSTETTER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-04474-1. Date filed: 04/24/95. Judge signing: Hon. Carmen Otero.

Petition for Review Denied July 8, 1997,

PER CURIAM. -- Matthew Branstetter appeals from the judgment and sentence entered following his conviction for first degree theft. He contends the superior court erred in ruling that his speedy trial rights were not violated because, under CrR 3.3(d)(2) and CrR 3.4, his speedy trial period restarted when he failed to appear at continuance and omnibus hearings. Because the rules authorize a restart in these circumstances, we affirm.

FACTS

The facts of the underlying offense are not relevant to the issue on appeal. Branstetter was arraigned on August 2, 1994. Following several continuances, he waived his speedy trial expiration date to December 12.

The court eventually entered an order setting the omnibus hearing for November 23 and trial for December 8. Branstetter signed that order, which provided in part:

I understand that I must appear for my Omnibus Hearing unless a written waiver of my presence for good cause is approved by the court. I understand . . . that my failure to appear for the Omnibus Hearing (unless waived) and trial will result in the issuance of a warrant for my arrest and may result in additional criminal charges being filed against me.

The prosecutor moved to accelerate or continue the trial date and noted a hearing on that motion for November 18. On that date, the prosecutor and Branstetter's attorney appeared before the criminal presiding Judge. The prosecutor indicated that the victim would be in Hawaii between December 10 and 27, and that he (the prosecutor) would be on vacation during the first two weeks of January. Accordingly, he sought to either accelerate trial to November 28, or continue it to late January. Because Branstetter was not present, however, the prosecutor moved for a bench warrant. Defense counsel asked the court to hold off on the warrant. He indicated he had talked with Branstetter regarding the hearing and that he "regularly shows up late." The court granted the motion for a warrant, subject to it being quashed if Branstetter appeared.

Branstetter never appeared and the bench warrant was filed on November 21, 1994. Although the record is somewhat unclear, it appears the omnibus hearing was never held and the warrant cancelled the trial date.

On December 8, Branstetter appeared outside the criminal presiding courtroom with counsel. According to the record, this was his first court appearance following his failure to appear for the November 18 hearing and the November 23 omnibus hearing. He demanded he be sent to trial and attempted to enter the courtroom. King County Corrections Officers restrained him, but he eventually succeeded in getting before a Judge. The Judge told him he was not on the docket because "once the Judge signs a bench warrant it strikes the trial date." Branstetter then made a record of his intent to go to trial. He also filed a document indicating that he had attended all pretrial proceedings at which his presence was required under CrR 3.4, that he was ready to go to trial, and that he would not agree to an extension of the December 12 speedy trial expiration date.

On December 13, one day after expiration of the speedy trial period, the parties, including Branstetter, appeared before the court on a motion to quash the bench warrant and a motion to substitute counsel. The court asked him if he had kept in touch with his counsel between November 18 and the December 8 trial date. He said he had left messages with counsel, and counsel had left messages with him. He said he had not gone to counsel's office because he was trying to hire a private attorney.

After indicating that hiring new counsel was not a good reason for failing to keep in touch with his appointed counsel, the court stated that Branstetter's failure to appear at the continuance and omnibus hearings justified restarting the speedy trial period. Defense counsel disagreed and said he would file a motion to dismiss. When the court asked his position on the issue, counsel stated:

Under CrR 3.3(d)(2), the only proceedings that the defendant's failure to appear at will interrupt the speedy trial date are those that are required by CrR 3.4, which is the arraignment and the trial, which is defined as all proceedings in the trial from the empaneling of the jury to return of the verdict . . . . No other proceedings are required under 3.4. In response, the court noted that Branstetter had signed an order indicating he understood his presence was required at the omnibus hearing.

Defense counsel argued that the matter was not adequately briefed and asked for the opportunity to bring a written motion at trial, but the court denied the requests. The court quashed the bench warrant and signed an order setting the trial date for March 6, 1995, with a speedy trial expiration date of March 8.

On December 23, Branstetter filed a motion to dismiss. The Judge hearing the motion ruled that it was essentially a motion for reconsideration of the December 13 ruling, and that it ...


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