Opinion
No. 5504-1.
September 18, 1978.
[1] Criminal Law — Trial — Time of Trial — Pretrial Confinement — After Setting Trial Date. For purposes of CrR 3.3, an accused who is not in custody when his trial date is set is entitled only to trial within 90 days from his preliminary appearance. His later confinement and inability to obtain release do not affect this application of the rule unless he seeks and is refused a new trial date with the 60-day period applicable to confined defendants.
[2] Constitutional Law — Speedy Trial — Court Rules — Time Limits. The constitutional imperative that there be prompt disposition of criminal cases does not require that a defendant be tried within a specific number of days. CrR 3.3 is to be construed as an aid in insuring speedy criminal justice insofar as is reasonably possible.
Nature of Action: A prosecution for first-degree assault was dismissed for failure to comply with the 60-day provisions of the speedy trial rule. The defendant's trial date was set within the 90-day provisions while the defendant was at liberty. He was later confined but did not seek a resetting of his trial date.
Superior Court: The Superior Court for King County, No. 79852, T. Patrick Corbett, J., on March 4, 1977, entered a judgment of dismissal. Court of Appeals: Holding that the 90-day rule was applicable since the defendant was not in custody at the time of trial setting, the court reverses the dismissal and remands for trial.
Christopher T. Bayley, Prosecuting Attorney, and Betsy R. Hollingsworth, Deputy, for appellant.
Mark Leemon of Seattle-King County Public Defender, for respondent.
[As amended by order of the Court of Appeals October 27, 1978.]
A charge of first-degree assault against Steven Cornwall was dismissed for violation of his speedy trial rights as set forth in CrR 3.3.
The State appeals contending that Cornwall was brought to trial within 90 days of his preliminary appearance, which in his case was the applicable time limit under CrR 3.3. We agree and reverse the trial court dismissal.
Cornwall was arrested on December 4, 1976, on an assault charge and placed in the King County Jail. He made a preliminary appearance on December 6, 1976. On December 7, 1976, a complaint was filed in district court charging Cornwall with second-degree assault. He remained in custody until December 22, 1976, when he was released on his personal recognizance following a preliminary hearing.
On appeal, both parties agree that to comply with CrR 3.3, the time within which trial must be commenced runs from this date.
On December 27, 1976, the case was ordered bound over for trial in Superior Court with the conditions of Cornwall's release remaining in effect. An information was filed in Superior Court on December 30, 1976, charging Cornwall with assault in the first degree. On the same day, a warrant was issued for Cornwall's arrest and bail was set at $5,000.
Cornwall appeared for arraignment on January 3, 1977, but was not arrested on the warrant. On January 10, 1977, an attorney appeared for Cornwall and selected a trial date of February 28, 1977, 84 days after the preliminary appearance in district court. On that date, Cornwall's counsel also learned of the outstanding arrest warrant and notified Cornwall, who surrendered the following day. Cornwall's subsequent motion for personal recognizance release was denied and he remained in jail until trial on March 4, 1977 — the 88th day after his preliminary appearance in district court.
Before trial, Cornwall moved for dismissal for violation of his speedy trial rights under CrR 3.3. He contended that his incarceration for more than 60 days prior to trial violated CrR 3.3. His motion was granted.
CrR 3.3 (Speedy Trial) reads, in pertinent part, as follows:
(b) Time Limit. A criminal charge shall be brought to trial within 90 days following the preliminary appearance.
(c) Priority Over Civil Cases. Criminal trials shall take precedence over civil. A defendant unable to obtain pretrial release shall have priority and the charge shall be brought to trial within 60 days following the preliminary appearance.
The dispositive issue is whether Cornwall was a "defendant unable to obtain pretrial release" and thus entitled to the benefit of the 60-day time limit fixed by CrR 3.3. The State contends he was not. We agree.
[1] The approved draft of the ABA Standards Relating to Speedy Trial § 1.1(b) (1968) gives preference to the trial of defendants "in custody." CrR 3.3 provides the same preference when it refers to defendants "unable to obtain pretrial release". When Cornwall's trial date was set for February 28, 1977, he was not in custody and was not, therefore, a defendant "unable to obtain pretrial release". Consequently, the court met its "responsibility . . . to insure [Cornwall] . . . a speedy trial in accordance with the provisions of [CrR 3.3]." CrR 3.3(a).
When Cornwall surrendered himself on January 11, 1977, he was aware that his trial was set for February 28, 1977. He knew then that if not released, he would have been held for 66 days "following the preliminary appearance." He could have sought a trial date within the 60-day requirement of the rule. He did not do so.
[2] There is no constitutional right to trial within a specific number of days. Rules such as CrR 3.3 are permitted but not constitutionally required. Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). In promulgating CrR 3.3, the Supreme Court exercised its rulemaking power in aid of the constitutional imperative that there be prompt disposition of criminal cases. State v. Goldthorpe, 14 Wn. App. 268, 540 P.2d 455 (1975). The purpose of the rule is to insure speedy justice in criminal cases insofar as is reasonably possible. State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975). A delay of 88 days between Cornwall's preliminary appearance and the date of his trial neither violated the rule nor denied Cornwall his constitutional right to a speedy trial.
The judgment of dismissal is reversed and the case is remanded for trial.
ANDERSEN, A.C.J., and WILLIAMS, J., concur.
Reconsideration denied October 25, 1978.
Review denied by Supreme Court March 16, 1979.