State v. Higley
| Decision Date | 13 June 1995 |
| Docket Number | No. 16716-6-II,16716-6-II |
| Citation | 78 Wn.App. 172,902 P.2d 659 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. John Eric HIGLEY, Appellant. |
Pamela Loginsky, Deputy Prosecuting Attorney, for respondent.
John Eric Higley appeals a conviction for vehicular assault. We affirm.
On July 4, 1989, a car driven by Higley collided with a car driven by Teri Dixon. Higley was intoxicated at the time. Dixon struck her head on the windshield and was taken to the hospital. The hospital medical staff did not think Dixon was seriously injured, 1 and someone so informed the investigating state trooper.
The trooper did not charge vehicular assault, which requires proof of serious bodily injury. RCW 46.61.522(1). Rather, he cited Higley for DWI and reckless driving, both misdemeanors. Higley was arraigned on July 25, 1989, and trial was set for mid-October, 1989.
During July and August, Dixon continued to experience headaches, nausea and amnesia related to the accident. In September, her physicians diagnosed a closed head injury, fractured vertebra and postconcussive syndrome, with some permanent impairment of vision and eye-hand coordination. No one informed the investigating trooper or the prosecutor of the new diagnosis.
On October 5, 1989, Higley petitioned for an order of deferred prosecution, and trial was postponed so he could be evaluated. See RCW 10.05.030-.050. On or before November 28, 1989, Higley apparently executed the statement required by RCW 10.05.020(2). 2 That statute provides:
Before entry of an order deferring prosecution, a petitioner shall be advised of his rights as an accused and execute, as a condition of receiving treatment, a statement that contains a) An acknowledgement of his rights; (b) a stipulation to the admissibility of the facts contained in the written police report; and (c) an acknowledgement that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution.
On November 28, 1989, the District Court granted an order deferring prosecution. The order required Higley to successfully complete a two-year treatment program and report to a supervising probation officer. See RCW 10.05.150, .170.
On March 22, 1990, Dixon's civil attorney wrote to the prosecutor asking for copies of the police reports related to the accident. The letter said that Dixon had sustained a brain injury and a broken neck. This was the first notice to law enforcement that Dixon had been seriously hurt. The prosecutor took no action, except to supply the requested police reports.
In June, Dixon herself wrote to the prosecutor. She described her injuries, their impact on her life, and her anger at the disposition of Higley's case. The prosecutor responded with a letter explaining that the State had not known about Dixon's injuries when Higley was placed on deferred prosecution.
In September 1990, Dixon's civil attorney again wrote to the prosecutor. This time, he sought help in locating Higley. He enclosed a note from Higley's father, indicating that Higley had gone to Alaska to work on a fishing boat. Thinking that Higley had left the state without permission, the prosecutor began to investigate further.
Higley returned from Alaska in October. By that time, the prosecutor had examined Dixon's medical records and decided that a charge of vehicular assault should be filed. Thus, on November 26, 1990, the prosecutor filed a motion asking the District Court to revoke the order of deferred prosecution and dismiss without prejudice the underlying misdemeanor charges.
In January 1991, the District Court held an evidentiary hearing. On February 7, it ruled that Higley had gone to The State obtained a writ of review from the Superior Court. In April, that court declined to disturb the District Court's holding that Higley had not committed a violation sufficient to warrant revocation. It also ruled that even in the absence of a violation, the District Court had discretion to dismiss the underlying charges without prejudice. It remanded the case to the District Court, essentially with directions for that court to exercise its discretion.
Alaska with the approval of his treatment program; that he was making up the meetings he had missed; that he could still complete the program within two years; that both the program and his probation officer thought he was making good progress; and that his deferred prosecution should not be revoked. Citing RCW 10.05.090 and RCW 10.05.120, it further ruled that it lacked the authority to dismiss the charges without prejudice, unless the defendant had failed to perform his treatment plan or had successfully completed treatment. Neither event having occurred, the District Court denied the motion to dismiss without prejudice.
On July 18, 1991, after another hearing, the District Court ruled that the charges for DWI and reckless driving should be dismissed without prejudice. Later the same day, the State filed a charge of vehicular assault in the Superior Court.
On August 7, 1991, Higley filed a motion in Superior Court to dismiss the charge of vehicular assault. He also asked the Superior Court to stay the vehicular assault charge while he sought review of the District Court's order of dismissal without prejudice. He waived speedy trial prospectively, but reserved the right to assert violations already accrued. The Superior Court granted the stay and delayed disposition of the motion to dismiss.
Higley appealed the order of dismissal without prejudice to the Superior Court. When the Superior Court refused to alter the District Court's order, he sought discretionary review from this court and the Supreme Court. Both denied review, with the Supreme Court's denial coming on September 15, 1992.
On October 5, 1992, the Superior Court denied the motion to dismiss that had been pending since August 7, 1991. Later the same day, Higley agreed to a bench trial and stipulated to the facts of the accident. The trial judge then entered a verdict of guilty of vehicular assault.
Sentencing took place on December 15, 1992. Although Higley's standard range was three to nine months, the trial court found that he had cooperated fully and in good faith with his treatment program, that he had "rehabilitated himself in the community", 3 and that his "restitution obligations have been discharged in [a separate] civil action". 4 The court imposed an exceptional sentence of 30 days in jail, to be served on weekends, plus 24 months of community supervision. 5
Higley now appeals. As he did in Superior Court, he claims that the Superior Court's order denying his motion to dismiss the vehicular assault charge violated (1) his right against double jeopardy, (2) his rights to speedy trial, (3) his rights under the deferred prosecution statute, and (4) his right to due process of law.
Higley claims that jeopardy attached on November 28, 1989, when the District Court entered its order granting deferred prosecution. The State argues that jeopardy never attached, and, even if it did, that prosecution is not barred because of what, for reasons we explain below, we call the Diaz exception.
The double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice Jeopardy does not attach merely because a charge is filed or pre-trial proceedings are held. Serfass, 420 U.S. at 389, 95 S.Ct. at 1063. Rather, it attaches when a defendant is "put to trial before the trier of facts, whether the trier be jury or a judge". Serfass, at 388, 95 S.Ct. at 1062 (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971)). It attaches in a jury trial when the jury is empaneled, or in a bench trial when the court begins to receive evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); Serfass, at 388, 95 S.Ct. at 1062; State v. Culp, 30 Wash.App. 879, 881, 639 P.2d 766 (1982). It attaches in a guilty plea proceeding when the court accepts the plea. State v. Crisler, 73 Wash.App. 219, 223, 868 P.2d 204, review granted, 124 Wash.2d 1014, 879 P.2d 276 (1994) and aff'd sub nom. State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995); State v. Knutson, 11 Wash.App. 402, 404, 523 P.2d 967 (1974).
Even if the double jeopardy clause would otherwise apply, it does not bar prosecution for a greater charge if, when jeopardy attached to a lesser charge, a fact essential to support the greater charge was not in...
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