State v. Olson
| Decision Date | 27 April 1995 |
| Docket Number | No. 61860-7,61860-7 |
| Citation | 893 P.2d 629,126 Wn.2d 315 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Bryan P. OLSON, Petitioner. |
Mestel & Muenster, Mark D. Mestel, Everett, for petitioner.
David R. Needy, Skagit County Prosecutor, K. Garl Long, Chief Criminal Deputy, Mount Vernon, for respondent.
*
Bryan Olson petitions for review of a Court of Appeals decision reversing a suppression order and reinstating a criminal charge against him. Mr. Olson does not challenge the Court of Appeals decision on the merits of the suppression issue. He instead argues only that the Court of Appeals should not have reached that issue and should have dismissed the State's appeal because the State did not properly appeal from the order suppressing the evidence and failed to assign error to the trial court's order of dismissal in violation of RAP 10.3(a)(3) and 10.3(g). For the reasons set out in the opinion below, we affirm the Court of Appeals' denial of Mr. Olson's motion to dismiss.
On May 20, 1992, police officers executed a search warrant at Mr. Olson's residence and discovered a marijuana growing operation. Mr. Olson was subsequently charged with possession of marijuana with intent to manufacture. He moved to suppress the evidence found in his home on the ground that the affidavit supporting the search warrant contained material misstatements and failed to establish probable cause. On February 11, 1993, a hearing was held and the trial court granted the motion and suppressed the evidence. The State filed a motion, affidavit and order of dismissal, Clerk's Papers, at 72-73, apparently so the State could appeal the suppression order under RAP 2.2(b)(1). 1 The trial court granted the motion and the charges were dismissed.
On March 1, 1993, the State filed a timely notice of appeal from the dismissal order. Clerk's Papers, at 74. The notice of appeal did not specifically refer to the suppression order, but the dismissal order, which was attached to the notice of appeal, clearly stated that the dismissal was based on the suppression of evidence by the trial court. Clerk's Papers, at 75.
On July 8, 1993, the State filed its opening brief. The State assigned error to the suppression order and argued for the validity of the warrant. The State's brief concluded that the suppression order should be vacated "and the subsequent order of dismissal, be reversed, and the case be remanded to the Superior Court for trial on the merits." Br. of Appellant, at 21. Mr. Olson then filed a motion to dismiss along with the brief of respondent. The motion to dismiss was based on the grounds that the State failed to assign error to the dismissal order in its opening brief and that the State failed to file a notice of appeal from the suppression order. Motion to Dismiss and Br. of Resp't, at 1. In its reply brief, the State moved to amend its brief by adding an assignment of error to the dismissal order. Rep.Br. of Appellant, at 10-11.
The Court of Appeals denied Mr. Olson's motion to dismiss. The court found (Footnote omitted.) State v. Olson, 74 Wash.App. 126, 129, 872 P.2d 64 (1994). The court thus reached the merits of the case, reversed the trial court, and remanded for trial. Mr. Olson now seeks review of the Court of Appeals' denial of his motion to dismiss.
RAP 1.2(a) states:
These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands, subject to the restrictions in rule 18.8(b).
The clear language of this Rule supports the conclusion of the Court of Appeals and compels us to find that a technical violation of the rules, such as that in this case, should normally be overlooked and the case should be decided on the merits. This result is particularly warranted where the violation is minor and results in no prejudice to the other party and no more than a minimal inconvenience to the appellate court.
Mr. Olson cites Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 593 P.2d 156 (1979), State v. Fortun, 94 Wash.2d 754, 626 P.2d 504 (1980), State v. Pam, 101 Wash.2d 507, 680 P.2d 762 (1984), and State v. Perry, 120 Wash.2d 200, 840 P.2d 171 (1992), for the proposition that failure to assign error to matters in strict compliance with RAP 10.3(a)(3) will preclude a court from considering those matters on appeal. While these cases can perhaps be read to set out such a broad and rigid rule, that is not the best reading.
In Transamerica, we stated: "[w]e will not consider issues on appeal that are not raised by an assignment of error." 2 Transamerica, 92 Wash.2d at 28, 593 P.2d 156. This statement was made in the discussion of a contention that the appellant made orally to this Court, offering no argument and citing no authority. Moreover, after stating that we would not consider the issue, we nevertheless proceeded to discuss its merits. This case should therefore be read to hold only that an appellate court generally will not consider an issue raised for the first time during oral argument where there is no argument presented on the issue and no citation to authority provided.
State v. Fortun is similarly distinguishable from this case, although it involved facts similar to those here. In the trial for criminal possession of a controlled substance, the trial court issued an order suppressing all the physical evidence. The State then presented a proposed order dismissing the case which the trial judge signed. The State subsequently gave notice of appeal from both the pretrial suppression order and the dismissal order. In its brief, however, the State did not assign error to, argue, or request relief from the dismissal order. As in Transamerica, we emphasized not only that the appellant failed to assign error to a particular matter, it also failed to argue or supply citations.
RAP 10.3(a)(3) requires an appellant's brief to contain a concise statement of each asserted trial court error, together with the issues pertaining to the assignments of error. In addition, RAP 10.3(a)(5) requires argument in support of the issues presented for review, together with citations to legal authority. In appealing the trial court's pretrial order of suppression ... the State complied with RAP 10.3(a)(3) and (5). It did not, however, assign error to or argue the more basic and underlying order which dismissed the charge against respondent.
Fortun, 94 Wash.2d at 756, 626 P.2d 504.
Because we considered the two violations of the rules so closely together, Fortun cannot stand for the proposition that the failure to assign error to an issue, by itself, will necessarily result in an appellate court refusing to consider that issue. We did state: "[w]e have held consistently that we will not consider matters to which no error has been assigned." Fortun, 94 Wash.2d at 756, 626 P.2d 504. As shown above, however, the cases we cited, Transamerica, Schneider, and Tanzymore, do not stand for such a broad and rigid rule. Moreover, this statement must be read in the context of a complete failure of the appellant to raise the issue in any way at all--neither in the assignments of error, in the argument portion of the brief, nor in the requested relief.
State v. Pam relied on Fortun and supports the more narrow reading of that case.
In Fortun, we refused to consider the merits of the State's appeal from a suppression order because the State had failed to "assign error to or argue the more basic and underlying order which dismissed the charge against respondent." Fortun, at 756, 626 P.2d 504.
Precisely the same events occurred here.
(Italics added.) Pam, 101 Wash.2d at 511, 680 P.2d 762. State v. Perry, 120 Wash.2d 200, 840 P.2d 171 (1992), also relied on Fortun. There, the State again failed to assign error to the underlying order of dismissal. While it is unclear from the opinion whether the State presented argument on the issue or requested relief from the dismissal order, it presumably did not since we stated that Fortun "mandates dismissal of this case because the circumstances here are precisely the same as in Fortun." Perry, 120 Wash.2d at 202, 840 P.2d 171.
Thus, none of the cases relied on by Mr. Olson are as broad as he suggests. Instead, they stand only for the proposition that when an appellant fails to raise an issue in the assignments of error, in violation of RAP 10.3(a)(3), and fails to present any argument on the issue or provide any legal citation, an appellate court will not consider the merits of that issue. To the extent, however, that Fortun and its progeny may conflict with our holding today, they are overruled.
This more narrow rule is supported by sound policy considerations which do not apply to the broad rule proposed by the Petitioner. The narrow rule makes perfect sense because in the situation where the issue is not raised at all, the Court is unable to properly consider the issue prior to the hearing and is given no information on which to decide the issue following the hearing. More importantly, the other party is unable to present argument on the issue or otherwise respond and thereby potentially suffers great prejudice. That situation is far different from the situation presented in this case, however, where, as the Court of Appeals noted, the nature of the State's challenge is clear. State v. Olson, 74 Wash.App. 126, 129, 872 P.2d 64 (1994).
Significantly, none of the cases relied on by the Petitioner address the effect of RAP 1.2(a) which states that "[c]ases and issues will not be determined on the basis of compliance or noncompliance with...
To continue reading
Request your trial
-
State v. Studd
...that." State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984) (citation omitted), overruled on other grounds by, State v. Olson, 126 Wash.2d 315, 321, 893 P.2d 629 (1995).5 Concurrence at 1058 (emphasis added).1 As an aside the majority references the curing instruction, WPIC 16.07, and su......
-
State v. Engelstad
...then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995). Shouse attempts to evade the stipulation by asserting he did not understand the effect of the stipulation. But the cour......
-
State v. Thomas
...was not preserved for appeal. See State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984), overruled on grounds by State v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995). 3. Admission of Detective Webb's Testimony Regarding Lynch's Thomas argues that Detective Webb was permitted to testify ab......
-
State v. Elmore, 64085-8.
...prohibited from setting up an error at trial and then complaining of it on appeal), overruled on other grounds by State v. Olson, 126 Wash.2d 315, 321, 893 P.2d 629 (1995); State v. Boyer, 91 Wash.2d 342, 345, 588 P.2d 1151 (1979) (party may not challenge on appeal an instruction which it p......
-
Chapter § 4.3 Superior Court Decisions that May Be Appealed
...violation of the rules when the nature of the appeal is clear and the relevant issues are argued in the briefs in State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (c) Arrest or vacation of judgment RAP 2.2(b)(3) allows the state to appeal from an order arresting or vacating a judgment. (d) New t......
-
Chapter § 11.7 Particular Applications of the General Rule and Its Exceptions
...(1988)); cf. State v. Fortun, 94 Wn.2d 754, 626 P.2d 504 (1980) (state's failure to properly assign error fatal). But see State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995) (state's failure to properly assign error was only a technical inadequacy and court could hear the (e) Concurrent sent......
-
Table of Cases
...180 Wn.2d 468, 325 P.3d 187, cert. denied, 135 S. Ct. 287 (2014): 12.8(14) State v. Olson, 74 Wn. App. 126, 872 P.2d 64 (1994), aff'd, 126 Wn.2d 315, 893 P.2d 629 (1995): 4.3(14)(b), 5.4(3), 11.7(9)(d), 14.8(8)(a) State v. Onefrey, 119 Wn.2d 572, 835 P.2d 213 (1992): 4.3(1)(c) State v. Oppe......
-
Chapter § 14.8 Brief of Appellant or Petitioner
...error or clearly disclosed in the associated issue pertaining thereto." Before the Washington Supreme Court's decision in State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995), the appellate courts did not consistently follow the mandate of RAP 1.2. See McClendon v. Callahan, 46 Wn.2d 733, 740......