State v. Gregory

Decision Date17 October 1968
Docket Number39857,Nos. 39665,s. 39665
Citation74 Wn.2d 696,446 P.2d 191
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Ethel GREGORY, Appellant. STATE of Washington, Respondent, v. Mike STAPLETON, Appellant.

Garver & Garver, Robert W. Garver, Jr., Camas, Egger, Richey & Eikenberry, Jack A. Richey, Seattle, for appellant.

Gilbert C. Valley, Pros. Atty., Chehalis, Ed Beeksma, Pros. Atty., Coupeville, for respondent.

ARMSTRONG, Judge. *

Two appeals, which are concerned with closely related questions, are consolidated for disposition in this opinion. Both deal with the application and interpretation of chapter 6 of the Criminal Rules for Justice Court, RCW vol. 0.

In the first, the defendant, Gregory, who was convicted in justice court of obstructing justice, gave timely written notice of appeal and requested the justice court clerk to send a transcript to the superior court. The judgment appealed from was entered on February 11, 1966. Having learned that the transcript was not filed as requested, defendant's attorney, on March 21, 1966, again requested that it be filed. On April 22, 1966, the attorney demanded immediate filing and was informed that the transcript had been filed on March 23, 1966. On May 2, 1966, the attorney noted the case for trial. On May 15, 1967, the superior court dismissed defendant's appeal for noncompliance with JCrR 6.01 in two respects: failure to file the transcript within 30 days from the entry of judgment, and failure to note the case for trial within 10 days after the transcript was filed.

In the second case, defendant, Stapleton, who was convicted in justice court of driving while under the influence of alcohol gave timely written notice of appeal on April 27, 1967, the date the justice court judgment was entered. On May 3, 1967, defense counsel requested by letter that a transcript be prepared and filed with the superior court. The justice court filed the transcript on May 8, 1967, but defense counsel did not note the case for trial setting until May 22, 1967. The superior court dismissed the appeal because of defendant's failure to timely note the case for trial.

On appeal to this court, the defendant, Gregory, argues that she was denied her right to appeal through fault of the justice court and that to apply strictly JCrR 6.01 and 6.03 is a denial of justice.

Defendant Stapleton argues on this appeal also that the justice court was at fault for the failure to timely note the case for trial because there was no notice afforded him that the transcript was filed and, therefore, he could not know the time within which he must note the case for trial.

We find both claims without merit. The facts and the rules speak for themselves. JCrR 6.01 provides in part:

After notice of appeal is given as herein required, appellant shall diligently prosecute his appeal, and within 30 days from the day of entry of judgment, shall file with the clerk of the superior court a transcript duly certified by such judge * * *. Within 10 days after the transcript is filed, appellant shall note the case for trial.

JCrR 6.03 provides:

If the appellant fails to proceed with the appeal within the time and manner herein provided, the superior court shall upon motion of the respondent dismiss the appeal if the transcript has been there filed, otherwise, the lower court shall do so. (Italics ours.)

We recently reiterated in City of Port Angeles v. Dustin, 73 Wash.Dec. 2d 717, 440 P.2d 420 (1968):

These rules are mandatory, as are the statutes from which the language was taken. The burden of complying with them is clearly upon the appellant. City of Seattle v. Reed, 6 Wash.2d 186, 107 P.2d 239 (1940); State v. Ladiges, 63 Wash.2d...

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11 cases
  • City of Goldendale v. Graves
    • United States
    • Washington Court of Appeals
    • 23 Febrero 1976
    ...We feel the most recent cases considering appeals from District Court are distinguishable from the instant case. In State v. Gregory, 74 Wash.2d 696, 698, 446 P.2d 191 (1968), the defendants requested the Justice Court Clerk to send the transcript to the Superior Court; under the rules exis......
  • State v. Arambul, 2741-III-4
    • United States
    • Washington Court of Appeals
    • 24 Enero 1980
    ...court. Within 10 days after the transcript is filed, appellant shall note the case for trial." (Italics ours.)6 State v. Gregory, 74 Wash.2d 696, 698, 446 P.2d 191 (1968); State v. Carmody, 75 Wash.2d 615, 617, 452 P.2d 959 (1969); State v. Sodorff, 84 Wash.2d 888, 890, 529 P.2d 1066 ...
  • State v. Sodorff
    • United States
    • Washington Court of Appeals
    • 11 Junio 1974
    ... ... The prosecuting attorney, noting this oversight, filed a motion in the superior court to dismiss the appeal ...         The superior court judge, recognizing the rule as set down in State v. Carmody, 75 Wash.2d 615, 452 P.2d 959 (1969); State v. Gregory, 74 Wash.2d 696, 446 P.2d 191 ... (1968); Port Angeles v. Dustin, 73 Wash.2d 712, 440 P.2d 420 (1968), granted the state's motion. The cases cited require, in clear and concise language, strict compliance with the rule requiring and serving and filing of the notice of appeal and other ... ...
  • State v. Taylor
    • United States
    • Washington Court of Appeals
    • 7 Junio 1977
    ...See State v. Sodorff, 84 Wash.2d 888, 529 P.2d 1066 (1975); State v. Carmody, 75 Wash.2d 615, 452 P.2d 959 (1969); State v. Gregory, 74 Wash.2d 696, 446 P.2d 191 (1968). Likewise, the speedy trial rule applicable to superior courts, CrR 3.3, has been strictly enforced and non-compliance res......
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