State v. Carson
| Decision Date | 14 March 1996 |
| Docket Number | No. 62512-3,62512-3 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Richard CARSON, Petitioner. |
Richard Carson, Airway Heights, Eric M. Christianson, Spokane, for petitioner.
Richard L. Weber, Okanogan County Prosecutor, Okanogan, for respondent.
Petitioner Richard Carson seeks review of an unpublished decision by the Court of Appeals, Division Three, affirming his conviction of rape in the first degree in the Superior Court of Okanogan County and a ruling by the trial court which denied Petitioner's motion to dismiss, even though his case was not brought to trial within the sixty days required by the "speedy trial" rule, Superior Court Criminal Rule 3.3. We granted review. We affirm.
The questions presented in this case are: (1) whether the trial court acted properly in retroactively granting multiple five-day trial extensions under CrR 3.3, the "speedy trial" rule; and (2) whether Petitioner waived his right to a speedy trial by not objecting when his trial did not begin on the scheduled trial date and the speedy trial period expired before another trial date was set.
On January 8, 1992, Petitioner Richard Carson was charged in the Okanogan County Superior Court with rape in the first degree. 1 The case came to trial before a jury on May 15, 1992. 2 The jury could not agree on a verdict and the trial judge, the Honorable James R. Thomas, declared a mistrial on May 22, 1992. 3 On June 4, 1992, Judge Thomas signed an order setting a new trial date for July Petitioner Carson's case was not brought to trial on July 20, 1992 as scheduled. 8 Neither party sought a continuance and none was granted. Defense counsel, the deputy prosecuting attorney and the trial judge began trial in an unrelated case, State v. Smith, 66 Wash.App. 825, 832 P.2d 1366, on July 21, 1992. 9 That case was not completed until August 3, 1992. 10
20, 1992. 4 The court administrator advised counsel and the judge there might be a speedy trial problem with the trial date. 5 The matter was discussed, but no further steps were taken. 6 After discussion, Judge Thomas was under the impression the speedy trial problem had been "taken care of." 7
On August 3, 1992, the deputy prosecuting attorney assigned to Petitioner's case set it for a hearing which was held that afternoon. 11 The prosecutor was then of the opinion the speedy trial period began to run on June 4, 1992, and not May 22, 1992, and that it expired on August 3, 1992. 12 Defense counsel at the hearing moved to dismiss because the state had not brought the case to trial within the sixty days required by CrR 3.3. 13 Defense counsel stated he believed the speedy trial period began to run on the date the mistrial was declared, May 22, 1992, and expired on July 20, 1992. 14 Both the prosecutor and the trial judge Defense counsel indicated he did not object to the initial trial date setting for July 20, 1992 because it was within the sixty-day limit under CrR 3.3. 16 He also said he had no obligation to call to the attention of counsel for the state that the speedy trial period might be running. 17 Defense counsel stated "It's been my understanding all along that the speedy trial period commences as of the date of the mistrial." 18
then expressed their belief that the sixty-day period expired on July 21, 1992. 15
The prosecutor asked the court to grant a retroactive continuance based upon unavoidable or unforeseen circumstances as allowed by CrR 3.3(d)(8). 19 The prosecutor also stated that all discussions with the court administrator, Ms. Peggy Melvin, about a trial date for the case centered on Ms. Melvin's belief that the speedy trial period expired on August 5, 1992. He argued "[Ms. Melvin] can also testify that everybody was operating under the mistaken belief that the defendant's speedy trial ran August 5th instead of July 21st." 20 After hearing argument of counsel, the court denied Petitioner Carson's motion to dismiss and granted retroactive five-day continuances to August 5, 1992, the date set for trial. 21
On August 5, 1992, defense counsel appeared before the court near the end of the court day and moved for a continuance. He argued that he needed more time to prepare the case and to secure a witness. 22 Defense counsel stated his client was willing to waive his speedy trial rights The jury found Petitioner Carson "guilty" of rape in the first degree on August 11, 1992. 25 The court then sentenced him to 102 months. 26 The Court of Appeals, Division Three, affirmed the trial court in an unpublished opinion. 27 This court granted review on May 10, 1995.
through the middle of October 1992. 23 The trial court denied the motion for continuance. Petitioner Carson's second trial began the following morning on August 6, 1992. 24
Petitioner Carson assigns error to the trial court's denial of his motion to dismiss the case based upon a violation of the "speedy trial" rule, CrR 3.3.
Petitioner argues that the speedy trial period expired on July 20, 1992. 28 He claims the day the trial court declared a mistrial, May 22, 1992, should be included in calculating the sixty-day period for beginning a trial under CrR 3.3(d)(3). 29 In making this argument, he compares CrR 3.3(c)(1) to CrR 3.3(d)(3), both of which identify sixty-day periods.
CrR 3.3(c)(1) provides in relevant part "[a] defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment."
" 08cents= 30 CrR 3.3(d)(3) provides that the defendant "shall be brought to trial not later than 60 days after the oral order of the court [declaring a mistrial] if the defendant is thereafter detained in jail...." 31 Petitioner claims the difference in the language between the two rules is that one indicates that counting begins after the "date" of arraignment, and that the other indicates it begins after the "oral order," thus indicating that the date of the oral order granting a mistrial is counted. 32 Petitioner cites no authority for this argument. Nor is the argument logical.
CrR 3.3(d)(3) provides:
(d) Extensions of Time for Trial. The following extensions of time limits apply notwithstanding the provisions of section (c): 33
....
(3) Mistrial and New Trial. If before verdict the superior court orders a mistrial, the defendant shall be brought to trial not later than 60 days after the oral order of the court if the defendant is thereafter detained in jail....
(Emphasis added.)
Petitioner contends the trial court had no authority to grant multiple trial extensions retroactively under CrR 3.3(d)(8). 39
Specifically, Petitioner claims there were no unavoidable or unforeseen circumstances beyond the control of the court or the parties to justify the court's granting trial extensions under CrR 3.3(d)(8). 40 He argues the speedy trial problems were not unforeseen or unavoidable because the court administrator had informed all counsel and the judge of the potential speedy trial problem; other attorneys were available to try the case; the court could have obtained other judges or courtrooms; the court could have continued the Smith trial and ordered this trial to proceed; and the actual reason extensions were granted Respondent contends unavoidable and unforeseen circumstances did exist because defense counsel, the prosecutor and the judge assigned to this case were in fact unavailable for the reason that they were all engaged in another trial in the same court and also because there was confusion about the speedy trial expiration date. 42
was that Respondent had miscalculated the speedy trial expiration date. 41
CrR 3.3(d)(8) provides in pertinent part that:
When a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the court or the parties, the court, even if the time for trial has expired, may extend the time within which trial must be held....
(Emphasis added.)
The decision of a trial court in granting an extension under CrR 3.3(d)(8) is reviewed only for abuse of discretion. 43 The trial court abuses its discretion if its decision is based upon untenable grounds or upon untenable reasons. 44
Our courts of appeal have consistently held that unavailability of counsel may constitute unforeseen or unavoidable circumstances to warrant a trial extension under CrR 3.3(d)(8). 45 The record in this case does not indicate why Petitioner was not brought to trial on July The record also shows there was a mistaken belief 46 about the speedy trial expiration date. At the hearing on August 3 and 4, 1992, the prosecutor argued that during discussions about the potential speedy trial problem in Petitioner Carson's case, everyone, including the court and both counsel, mistakenly believed the speedy trial period expired on August 5, 1992. 47 However, defense counsel later contended he knew all along when the...
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