State v. Hall
| Decision Date | 26 October 1989 |
| Docket Number | No. 9073-6-III,9073-6-III |
| Citation | 780 P.2d 1337,55 Wn.App. 834 |
| Parties | STATE of Washington, Respondent, v. Freddie Joe HALL, Appellant. |
| Court | Washington Court of Appeals |
Rosemary L. Otto, Spokane, for appellant.
Ward McAuliffe, Spokane Prosecutor's Office, Spokane, for respondent.
Freddie Joe Hall appeals his conviction for attempting to elude a police vehicle, RCW 46.61.024. He contends the court abused its discretion in granting three continuances, and his trial began after the expiration of the speedy trial period provided by CrR 3.3(c)(2). We affirm.
Mr. Hall was charged with two separate second degree burglaries, in addition to the crime for which he was convicted. The first burglary charge arose out of an incident on November 27, 1986. The second burglary charge, and the present conviction, arose out of an incident on August 4, 1987. In the following outline, matters relating to the first burglary charge of November 27, 1986 are underlined:
Mr. Hall was acquitted of second degree burglary, but convicted of attempting to elude a police vehicle. He was sentenced to 90 days for the earlier burglary conviction (with credit for 57 days already served), and 90 days for the attempting-to-elude conviction (with credit for 90 days already served). This appeal involves only the attempting-to-elude conviction.
The primary issue is whether the trial on the second information began after the speedy trial period expired. CrR 3.3 provides in relevant part:
(c) Time for Arraignment and Trial.
. . . . .
(2) Cases Filed Initially in District Court.
(i) ... A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment [in superior court], less time elapsed in district court. A defendant released from jail ... pending trial shall be brought to trial not later than 90 days after the date of arraignment, less time elapsed in district court.
Since Mr. Hall was confined, a literal reading of the rule would establish 60 days as the period within which Mr. Hall must be brought to trial. However, the State contends the 90-day period applies, arguing Mr. Hall was in custody on an unrelated charge and would have remained in jail anyway. In State v. Bernhard, 45 Wash.App. 590, 593-95, 726 P.2d 991 (1986), review denied, 107 Wash.2d 1023 (1987), the court applied the 90-day period, reasoning that because the defendant remained in custody on an unrelated prior conviction, he would not have been at liberty in any event.
This rationale is inapplicable here. Unlike the defendant in Bernhard, Mr. Hall was not in custody on the unrelated charge throughout the entire period at issue. The bench warrant was issued on September 10, 1987, more than a month after his arrest on these charges. Also, after Mr. Hall pleaded guilty to the other burglary and agreed to postpone sentencing pending resolution of the charges in this case, the cases were no longer unrelated. Finally, the State's argument would require the court to assume the sentence on the guilty plea would have been at least as long as the delay in sentencing. 1 The 60-day period applies in this case.
Arraignment initiates the speedy trial period, "less time elapsed in district court". CrR 3.3(c)(2)(i). Here, the time elapsed in district court was 27 days, see CrR 3.3(c)(2)(ii), CrR 8.1. Therefore, on September 3, 1987, the day of arraignment, 33 days remained under the 60-day rule. Seven more days elapsed before the bench warrant was issued on the other burglary charge, leaving 26 days as of September 10.
The State contends the period from the issuance of the bench warrant until Mr. Hall's guilty plea also should be excluded. This argument apparently invokes CrR 3.3(g)(2), which excludes the period of "[p]reliminary proceedings and trial on another charge ..." In State v. Bernhard, supra 45 Wash.App. at 598, 726 P.2d 991, the court held this section "excludes from the speedy trial calculations the entire period that a defendant is involved in a trial on another matter". (Italics omitted.) The other matter may be an unrelated federal case, State v. Young, 89 Wash.2d 613, 574 P.2d 1171, cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); State v. Chaney, 17 Wash.App. 258, 562 P.2d 259 (1977), or state charge, State v. Knauff, 46 Wash.App. 877, 733 P.2d 991, review denied, 108 Wash.2d 1012 (1987), a charge in another state, State v. Pizzuto, 55 Wash.App. 421, 778 P.2d 42 (1989), or even a probation violation proceeding. State v. Pacheco, 107 Wash.2d 59, 726 P.2d 981 (1986). The exclusion applies at least until a defendant enters a guilty plea on the other matter. Bernhard, 45 Wash.App. at 598, 726 P.2d 991; see Pizzuto, 55 Wash.App. at 429-30, 778 P.2d 42. In this case, at least the period from the issuance of the bench warrant until Mr. Hall's guilty plea is excluded from the calculations pursuant to CrR 3.3(g)(2). 2 This period overlaps with the waiver period, so the period from September 10, 1987, until the waiver period expired on October 28, is excluded. 3 Therefore, on October 28, 26 days remained in Mr. Hall's speedy trial period.
On October 28, the court granted the State's request for an extension until November 4, because the prosecutor was in another trial. Mr. Hall does not challenge this extension, which was valid under CrR 3.3(d)(8). 4 See State v. Raper, 47 Wash.App. 530, 736 P.2d 680, review denied, 108 Wash.2d 1023 (1987). Thus, on November 4, 26 of the 60 days still remained.
On November 4, the prosecutor was still in the other trial, and another 5-day extension pursuant to CrR 3.3(d)(8) would have been appropriate. However, Judge Luscher was advised a codefendant's newly appointed counsel intended to move for severance. In order to give both sides an opportunity to prepare arguments on the severance issue, the court granted a 2-week continuance, until November 16. 5
CrR 3.3(g)(3) excludes from the speedy trial period a valid continuance. CrR 3.3(h)(2) permits a continuance "when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense." The grant or denial of a continuance will not be disturbed on appeal absent a showing of manifest abuse of discretion. State v. Campbell, 103 Wash.2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985); State v. Brown, 40 Wash.App. 91, 94, 697 P.2d 583, review denied, 103 Wash.2d 1041 (1985). Here, the pending severance issue required more time than the 5 days permitted under CrR 3.3(d)(8). The 2-week continuance was necessary in the administration of justice, and the court did not abuse its discretion in granting it.
Thus, on November 16, there were still 26 days remaining in Mr. Hall's speedy trial period. Even if, arguendo, subsequent continuances were improper and therefore not excluded pursuant to CrR 3.3(g)(3), the unexpired portion of the 60-day period extended until December 12. Trial commenced on December 7. Mr. Hall's speedy trial rights were not violated.
Mr. Hall also contends the court abused its discretion in granting other continuances on November 16 and 30. He apparently contends his case should be dismissed if continuances within the speedy trial period were improvidently granted. However, the provisions of CrR 3.3 are not constitutionally based, State v. Campbell, supra 103 Wash.2d at 14, 691 P.2d 929, and dismissal is mandated pursuant to CrR 3.3(i) 6 only when the applicable speedy trial period has expired. Absent such a violation, a defendant must demonstrate actual prejudice to obtain dismissal. State v. Parris, 30 Wash.App. 268, 273-74, 633 P.2d 914 (1981), modified on other grounds, 98 Wash.2d 140, 654 P.2d 77 (1982).
Here, even assuming he is correct in arguing the court improvidently...
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State of Washington v. Snook, 68330
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