Opinion
Nos. 26689-0-II c/w 26877-9-II.
Filed: February 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 001037602, Hon. Stephanie A. Arend, November 3, 2000, Judgment or order under review.
Counsel for Appellant(s), Rebecca W. Bouchey, Attorney At Law, P.O. Box 64095, University Pl, WA 98464.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Dep Pros Atty, Rm 946, 930 Tacoma Ave, Tacoma, WA 98402-2171.
Russell Anthony Pernell appeals his conviction of three counts of bail jumping, arguing that the trial court violated his right to a speedy trial under CrR 3.3(c). We affirm.
Facts
On August 16, 2000, the State charged Pernell with three counts of bail jumping. He was arraigned the same day, so his sixty-day period for trial expired on October 16, 2000. The trial court set trial for October 9.
Clerk's Papers (CP) at 1-2.
The 60-day period expired on October 15, a Sunday, so was extended to Monday, October 16. CrR 8.1, CR 6.
On October 9, 2000, the parties jointly moved for a continuance because of courtroom unavailability. The court set the trial date over to October 11. On October 11, the court granted the State's motion for a continuance until October 16 because a critical State witness was unavailable and because there was another trial with less speedy trial time set for the same date. Pernell did not object. On October 16, the State requested a third continuance because a courtroom was unavailable. Pernell did object, but the trial court set the trial over to October 18.
Trial began on October 18. The jury returned guilty verdicts on all three counts. After sentencing, Pernell filed this appeal.
This appeal is consolidated with the personal restraint petition that Pernell filed.
Analysis
Pernell argues that the trial court violated his CrR 3.3 right to a speedy trial when, on October 16, it granted a continuance until October 18. Under CrR 3.3(c)(1), a defendant detained in jail must be brought to trial no later than 60 days after arraignment. If a criminal trial is not brought within the speedy trial period, CrR 3.3(i) requires dismissal of the charge with prejudice. A trial court has discretion, however, to grant a continuance under CrR 3.3(h)(2) 'when required in the administration of justice.' A continuance granted pursuant to CrR 3.3(h)(2) tolls computation of the speedy trial period.
State v. Williams, 104 Wn. App. 516, 521, 17 P.3d 648 (2001).
State v. Selam, 97 Wn. App. 140, 141, 982 P.2d 679 (1999), review denied, 140 Wn.2d 1013 (2000).
Selam, 97 Wn. App. at 142; CrR 3.3(g)(3).
Pernell argues that CrR 3.3(h)(2) controls the continuances granted here. Although the trial court did not refer to CrR 3.3(h)(2) in any of its written orders, each written order was on a form labeled 'continuance,' and the form had a box checked that contained the CrR 3.3(h)(2) 'due administration of justice' language. Accordingly, we agree that CrR 3.3(h)(2) controls here.
See Williams, 104 Wn. App. at 524 (holding that similar indications showed that CrR 3.3(h)(2) standard applied).
Pernell asserts that when the trial court granted a continuance from October 16 to October 18, it exceeded the CrR 3.3 speedy trial period without justification. The State responds that the October 16th continuance did not exceed Pernell's speedy trial period because of the tolling effect of the earlier continuances.
See State v. Smith, 104 Wn. App. 244, 252, 15 P.3d 711 (2001) (routine court congestion does not justify a continuance beyond speedy trial limits).
The initial continuance on October 9 tolled the speedy trial period and left six days remaining. Because of the successive October 11 continuance, those six days remained when the trial date was reset on October 16. Therefore, the final trial date of October 18 fell within the 60-day speedy trial period, and there was no violation of CrR 3.3.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, J., HUNT, J.