State v. Keller

Decision Date01 July 1965
Citation32 Wn.App. 135,647 P.2d 35
PartiesSTATE of Washington, Respondent, v. Jerry Lee KELLER, d.o.b
CourtWashington Court of Appeals

Ray Thoenig, Appellate Defender, Seattle (court-appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., David Smith, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Jerry Lee Keller appeals from a juvenile court order reinstating his prosecution for burglary in the first degree, burglary in the second degree, and possession of stolen property in the third degree, after the same juvenile court judge had dismissed the case with prejudice due to unreasonable delay in referring the case to the court. Two issues are presented:

1. Was the juvenile court judge entitled to reconsider his decision on his own motion after final judgment of dismissal was entered?

2. Was the defendant denied a speedy trial?

During the fall of 1980, while completing a juvenile court diversion agreement for obstructing a police officer and minor in possession of alcohol, the defendant was suspected of involvement in two King County burglaries and of possessing stolen property. The relevant dates and events are set forth in this chart:

                                                 Police       Case         Case       Date
                  Date                           Report    Referred to   Screened   Defendant
                Of Crime         Crime          Completed  Prosecutor   Sufficient   Charged
                --------         -----          ---------  ----------   ----------   -------
                10-23-80  Burg. 2 [degrees]    11-17-80   11-19-80     1-14-81      2-3-81
                10-24-80  P.S.P. 3 [degrees]   12-1-80    12-5-80      12-23-80     2-2-81
                11-21-80  Burg. 1 [degrees]    11-24-80   12-4-80      12-23-80     2-2-81

In addition, the State rescinded the diversion agreement and charged the defendant with obstructing a police officer and minor in possession of alcohol. On March 9, 1981, a hearing was held on the defendant's motion to dismiss for unreasonable delay in filing charges. The motion was brought pursuant to LJuCR 7.14(b), which provides:

(b) To Dismiss for Delay in Referral of Offense. The court may dismiss an information if it is established that there has been an unreasonable delay in referral of an offense to the court. For purposes of this rule, a delay of more than two weeks from the date of the completion of the police investigation of the offense to the time of receipt of the referral by the prosecutor shall be deemed prima facie evidence of an unreasonable delay. Failure to comply with this rule shall constitute an affirmative defense which must be raised by motion not less than one week before trial. Cause for delay may be shown by affidavit.

In its affidavit the State explained that "this cause was purposefully held in (the prosecutor's) office so that it could be screened with other referrals concerning the respondent." At the hearing the State argued that, given the disruption of the holiday season and a heavy turnover of clerical help, the delay was excusable. The court found the 2-month delay unreasonable, dismissed all charges, and released the defendant from custody.

THE COURT: .... I previously ruled on a similar MOTION on one prior case, and my attitude then was that I was not inclined to accept holidays or Word Processing problems as a sufficient excuse and haven't changed my mind. I think a 6-week delay is too long, and 6 to 8 weeks I think it is exacerbated in the case of MINOR in POSSESSION AND OBSTRUCTING, but the MOTIONS will be granted on all charges.

The following day, after entry of final judgment of dismissal, the court indicated to the State that it desired to review the matter and the State duly moved for reconsideration. The defendant objected, arguing that no court rule authorized reconsideration. The court held that a rule was unnecessary.

THE COURT: Well, my problem with your argument is that the absence of a Rule making provision for RECONSIDERATION does not to me reasonably preclude in certain circumstances the RECONSIDERATION of an item. I think that the questions that would prevent the Court from dealing with that issue are questions that would arise perhaps over issues of double jeopardy, or the like. I don't find, at least from my consideration of the issue, the ruling yesterday is of such a nature as to present that kind of issue. I think the matter has been initiated by the Court for purposes of inviting a MOTION FOR RECONSIDERATION promptly in respect to the time of the ruling, and I therefore intend to reconsider the matter.

After continuing the matter for additional briefing, the court on March 24, 1981 held that, while the delay was long, dismissal with prejudice was not warranted. It construed LJuCR 7.14(b) as conferring discretion upon the court whether to dismiss or not, and determined that, since the defendant was not prejudiced by the delay, he would proceed with trial on all charges except obstructing and minor in possession. The defendant was convicted of burglary in the first and second degrees by a juvenile court commissioner.

The defendant contends that the vacation of criminal judgments is governed by CR 60(b) and that the court has no inherent power beyond the rule to vacate or modify its final judgments. He argues that none of the grounds enumerated by the rule were stated by the court as a reason for reconsideration, and it therefore lacked authority to vacate its prior order of dismissal. The State replies that the court has authority to reconsider its orders of dismissal by virtue of CR 59, on the ground that the substantial right of the State to have the case heard on its merits was denied the State. In State ex rel. Lundin v. Superior Court, 90 Wash. 299, 302, 155 P. 1041 (1916), we find:

(A) trial court has no power to vacate or modify its final judgment after the announcement and the proper final entry thereof, in the absence of a showing of some statutory ground for such vacation or modification ....

Relief from judgments and orders in both civil and criminal cases is governed by CR 60(b), which supersedes RCW 4.72.010. State v. Scott, 92 Wash.2d 209, 595 P.2d 549 (1979); State v. Sampson, 82 Wash.2d 663, 513 P.2d 60 (1973). There is no authority for the State's contention that CR 59, dealing with new trials and amendment of judgments, applies to criminal cases. New trials or arrest of judgments in criminal cases is governed by the provisions of CrR 7.4. 1

The grounds authorized by CR 60(b) are inapplicable to this case, with the possible exception of CR 60(b)(11):

(b) .... On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:


(11) Any other reason justifying relief from the operation of the judgment.

Relief pursuant to CR 60(b)(11) should be confined to situations involving extraordinary circumstances not covered by any other section of the rule. State v. Scott, 20 Wash.App. 382, 580 P.2d 1099 (1978), aff'd 92 Wash.2d 209, 595 P.2d 549 (1979); see also Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949). Errors of law are not correctable through CR 60(b); rather, direct appeal is the proper means of remedying legal errors.

Appellant's arguments are directed chiefly to errors of law which are thought to have been committed in entering the original judgment now sought to be vacated. We have too often held that such a proceeding as this cannot be used as a means for the court to review and revise its own final judgment ....

Hurley v. Wilson, 129 Wash. 567, 568, 225 P. 441 (1924).

CR 60(b) does not authorize vacation of judgments except for reasons extraneous to the action of the court or for matters affecting the regularity of the proceedings. Marie's Blue Cheese Dressing, Inc. v. Andre's Better Foods, Inc., 68 Wash.2d 756, 415 P.2d 501 (1966).

(I)rregularities justify vacation whereas errors of law do not. For the latter the only remedy is by appeal from the judgment. The power to vacate for irregularity is not to be used by a court as a means to review or revise its judgments or to correct mere errors of law into which it may have fallen....


... Viewing the problem more generally it appears that an irregularity is regarded as a more fundamental wrong, a more substantial deviation from procedure than an error of law. An irregularity is deemed to be of such character as to justify the special remedies provided by vacation proceedings, whereas errors of law are deemed to be adequately protected against by the availability of the appellate process. Other than that, the most that can be said is that it must be left for the court in each instance to classify.

(Footnote omitted.) Trautman, Vacation and Correction of Judgments in Washington, 35 Wash.L.Rev. 505, 515 (1960).

The "any other reason" language of CR 60(b)(11) is thus not a blanket provision authorizing reconsideration for all conceivable reasons. The reasons permitted by CR 60(b)(11) must relate to "irregularities which are extraneous to the action of the court or go to the question of the regularity of its proceedings." Marie's Blue Cheese, 68 Wash.2d at 758, 415 P.2d 501.

Here the trial court desired to reconsider the matter to resolve three legal disputes as to the meaning of LJuCR 7.14(b): (1) whether the question of unreasonable delay applies to police delay only or to delay in the prosecutor's office; 2 (2) whether the defendant must show prejudice due to the delay; and (3) whether the rule authorizes sanctions less severe than dismissal for unreasonable delay, such as releasing the defendant from custody pending trial. These are legal matters which should have been raised and considered at the initial hearing, and which are beyond the scope of CR 60(b). The proper remedy after the judgment of dismissal was entered was for the State...

To continue reading

Request your trial
108 cases
  • Jennings v. Jennings, 20839-3-II
    • United States
    • Washington Court of Appeals
    • July 10, 1998
    ...go to the question of the regularity of its proceedings.' " Flannagan, 42 Wash.App. at 221, 709 P.2d 1247 (quoting State v. Keller, 32 Wash.App. 135, 141, 647 P.2d 35 (1982)). A motion to vacate a judgment under CR 60 is directed to the discretion of the trial court, and its decision will o......
  • Tatham v. Rogers
    • United States
    • Washington Court of Appeals
    • August 14, 2012
    ...of its proceedings.’ ” Flannagan, 42 Wash.App. at 221, 709 P.2d 1247 (internal quotation marks omitted) (quoting State v. Keller, 32 Wash.App. 135, 141, 647 P.2d 35 (1982)). ¶ 42 The U.S. Supreme Court has held that a challenge to a decision based on a trial court's failure to disqualify it......
  • Lakewest Condominium Owners Association v. Tokio Marine & Nichido Fire Insurance Company, Ltd., No. 62852-6-I (Wash. App. 6/1/2010)
    • United States
    • Washington Court of Appeals
    • June 1, 2010 other sections of CR 60(b). In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (quoting State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982)). The claimed circumstances must relate to irregularities that are extraneous to the trial court's action or go to the ques......
  • Marriage of Irwin, In re
    • United States
    • Washington Court of Appeals
    • January 27, 1992
    ...circumstances not covered by any other section of the rules.' " Yearout, at 902, 707 P.2d 1367 (quoting State v. Keller, 32 Wash.App. 135, 140, 647 P.2d 35 (1982)). Further, the Yearout court stated that those circumstances must relate to "irregularities extraneous to the action of the cour......
  • Request a trial to view additional results
3 books & journal articles
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Family Law Deskbook (WSBA) Table of Cases
    • Invalid date
    .... . 9.03[2], [b], [i], Keller v. Keller, 52 Wn.2d 84, 323 P.2d 231 (1958). . .67.02; 67.04[3][b][iv]; 67.05[1]; 67.06, Keller; State v., 32 Wn. App. 135, 647 P.2d 35 (1982) . . . . . . . . . . . 64.03[2][b][iii]; 69.03[1] Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948) . . . . . . . ......
  • §64.03 Vacation of Decrees (Cr 60)
    • United States
    • Washington State Bar Association Washington Family Law Deskbook (WSBA) Chapter 64 Finality of Decrees
    • Invalid date
    ...the regularity of the court's proceedings. In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985); State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). In Yearout, the trial court refused to vacate a nonmodifiable maintenance provision under CR 60(b)(11), on the grounds......
  • §69.03 Procedures
    • United States
    • Washington State Bar Association Washington Family Law Deskbook (WSBA) Chapter 69 Assets and Liabilities Not Disposed of By the Decree
    • Invalid date
    ...of "extraordinary circumstances." Ackermann v. United States, 340 U.S. 193, 200, 71 S. Ct. 209, 95 L. Ed. 207 (1950); State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). Therefore, a change in the law constitutes "extraordinary circumstances," and the court will apply the rule to div......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT