State v. Elizondo
| Decision Date | 09 October 1975 |
| Docket Number | No. 43615,43615 |
| Citation | 85 Wn.2d 935,540 P.2d 1370 |
| Parties | STATE of Washington, Respondent, v. Raymond M. ELIZONDO, Petitioner. |
| Court | Washington Supreme Court |
Calbom, Cox, Andrews & Hamm, Mark F. Andrews, Jr., Longview, for appellant.
Henry R. Dunn, Cowlitz County Pros. Atty., James Warmer, Deputy Pros. Atty., Kelso, for respondent.
This is a review on writ of certiorari of an order of the superior court denying the petitioner's motion to dismiss an information against him.
The following events give rise to this matter:
(1) August 22, 1974. Search of defendant's residence pursuant to a warrant, resulted in the seizure of approximately 3,000 amphetamine tablets and 50 grams of marijuana.
(2) August 22, 1974. Defendant was arrested.
(3) August 22, 1974. Defendant posted bail and was directed by a police officer, to appear in superior court on August 29, 1974, the next scheduled arraignment day.
(4) August 29, 1974. Defendant and his attorney appeared in superior court. A deputy prosecutor stated to the court that he did not think charges had been filed. There were no further proceedings before the court.
(5) December 13, 1974. An information was filed and served, charging violation of the Uniform Controlled Substances Act, RCW 69.50.401(c).
(6) December 26, 1974. Defendant moved to dismiss the information on the ground that there had not been compliance with CrR 3.3(b), the speedy trial rule.
(7) January 16, 1975. Defendant's motion to dismiss was denied.
We affirm the denial of the motion to dismiss.
CrR 3.3(b) provides: 'A criminal charge shall be brought to trial within 90 days following the preliminary appearance.'
CrR 3.3(f) provides: 'A criminal charge not brought to trial as required by this rule shall be dismissed with prejudice.'
Defendant contends that since more than 90 days elapsed both from his arrest and his court appearance, the rules mandate a dismissal. To support his position, defendant points to the comments which were issued by the Criminal Rules Task Force when recommending the proposed rules to the Washington Judicial Council and ultimately to this court. The comment to CrR 2.1 states:
Although the proposed subsection does not specify a time in which the prosecuting attorney must file, it is written in light of the totality of the proposed rules. Proposed Rule 3.3, dealing with speedy trial, states that a defendant shall be tried within 90 days * following the preliminary appearance, which pursuant to proposed amendments to Rule JCrR 2.03, (a)(1), Infra, must be within one judicial day following the arrest of the defendant.
The problem in this case exists because the prosecutor did not use the procedure contemplated by the rules, IE., an appearance in justice court pursuant to JCrR 2.03 which would have triggered the time limits of CrR 3.3(b).
The rules do not appear to contemplate the situation here present where the defendant is arrested, not brought before a magistrate under JCrR 2.03 and is released on bail, but not charged until substantially later. Again the comments are helpful in pointing out that the procedure used here is not contemplated by the rules. The comment to CrR. 3.3 stated:
Use of the term 'preliminary appearance' is intended to obviate many definitional difficulties in the uses of such terms as 'arrest' or 'custody'. If the rules proposed by the Task Force are adopted, the preliminary appearance would occur no later than the close of the court's business on the judicial date next following the day of arrest.
A review of the American Bar Association standards relating to criminal justice indicates that those standards do recognize that one may be arrested and held in custody, on bail or recognizance without being charged. To cover the hiatus we find in our rules, those standards compute the time from the date the charge is filed or from the time the defendant is held to answer if in custody, on bail or recognizance.
We need not decide whether the 'held to answer' concept is implicit in our rules, but it is the defendant's strongest position for it is clear that no charge had been filed within the meaning of CrR 3.3(b). Even if we adopted the defendant's theory, he is still not entitled to a dismissal.
The commentary to the A.B.A. standards make clear that only if a defendant continues within the control of the court until the filing of a charge is the time counted from the date when a defendant is held to answer. American Bar Association, Standards relating to Speedy Trial, Approved Draft 19 (1968).
The critical question then was the status of the defendant after he appeared in court on August 29. At that point he was no longer subject to any restraint. No charge had been filed. His bail bond was conditioned upon his appearance at that time and he appeared. The bail agreement also required defendant to appear at such other times as the court may require. The court made no such requirement. As a matter of law his bond was exonerated. See State v. Fidelity & Deposit Co., 133 Wash. 565, 234 P. 274 (1925), where the court held that a second information was not covered by the bond on an earlier charge which had been dismissed. Here there was no charge to dismiss. If there were any doubt in defendant's mind as to the status of his bail bond, he had an obligation to move for its exoneration.
Consequently, the time between August 29 and the filing of the information on December 13 did not count in calculating the time limits of CrR 3.3.
The order of the trial court denying dismissal is affirmed.
CrR 3.3 provides that a criminal charge shall be brought to trial within 90 days following the preliminary appearance. JCrR 2.03 provides:
(1) Any person arrested for any offense, including capital cases and other felonies and not released shall be taken without unnecessary delay before a judge. The term 'without unnecessary delay' means as soon as practically possible. In any event, delay beyond the close of business of the judicial day next following the day of arrest shall be deemed unnecessary. The court may, for good cause shown and recited in the order, enlarge the time prior to preliminary appearance.
(2) The judge shall inform the person of the crime for which he is arrested and of the rights of a person charged with a crime and shall provide for pretrial release pursuant to (JCrR) 2.09.
CrR 3.3 calculates the time within which a criminal charge must be brought to trial from the date of the preliminary appearance. The only provision for a preliminary appearance is found in JCrR 2.03. It will be observed that by its terms, JCrR 2.03 requires such a proceeding only where the arrested person remains in custody. Yet CrR 3.3 is not restricted in its scope to cases in which the defendant is held in custody.
Since the rule calculates the time from the date of the preliminary appearance, without taking account of the fact that a preliminary hearing may not be held, in order to give it effct in every case it must be construed as trial in 90 days from the be brought to trial in 90 days from the date upon which a preliminary hearing would be held, were one required. Otherwise, the speedy-trial requirement would have no applicability at all in cases where the defendant is released on bail. If this had been our intent in promulgating the rule, it would have been more exactly expressed. To my knowledge, such a result was never...
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State v. Phillips
...not held to answer would not count for purposes of CrR 3.3. State v. Parmele, 87 Wash.2d 139, 550 P.2d 536 (1976); State v. Elizondo, 85 Wash.2d 935, 540 P.2d 1370 (1975).9 Interestingly, the federal speedy trial act, 18 U.S.C. § 3161 et seq., adopts the same scheme as Washington's 1980 ame......
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State v. WHELECHEL
...not apply. Wieman, 19 Wash.App. at 645, 577 P.2d 154 (citing State v. Parmele, 87 Wash.2d 139, 550 P.2d 536 (1976); State v. Elizondo, 85 Wash.2d 935, 540 P.2d 1370 (1975); State v. LeRoy, 84 Wash.2d 48, 523 P.2d 1185 (1974); State v. Curry, 14 Wash.App. 775, 545 P.2d 1214 (1976)). In LeRoy......
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State v. Anderson
...State v. Striker, 87 Wash.2d 870, 557 P.2d 847 (1976)); State v. Parmele, 87 Wash.2d 139, 550 P.2d 536 (1976); State v. Elizondo, 85 Wash.2d 935, 540 P.2d 1370 (1975). However, the court will look to the ABA standards only in those situations in which the rule fails to address a particular ......
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State v. Barton
...the fact that we have examined previously the American Bar Association standards where a hiatus appears in CrR 3.3. State v. Elizondo, 85 Wash.2d 935, 540 P.2d 1370 (1975). It is true that in State v. Elizondo, supra, we did look to the ABA standards for guidance in filling gaps inadvertent......