Opinion
No. 25487-5-II.
Filed: December 19, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 98-1-04060-4, Hon. Grant L. Anderson, January 6, 1999, Judgment or order under review.
Counsel for Appellant(s), Mary K. High, Attorney At Law, 109 Tacoma Ave N, Tacoma, WA 98403.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Deputy Pros Atty, Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
Spencer Robert Owens appeals his convictions and sentence for first degree burglary and second degree assault and the related restitution order. He raises the same issues in a personal restraint petition (PRP), which we have consolidated with his appeal. Because Owens was not timely brought to trial, we grant his PRP, reverse his convictions, vacate the restitution order, and dismiss the charges with prejudice under CrR 3.3(i).
FACTS
On September 17, 1998, Pierce County Sheriff's deputies arrested Owens for burglary and assault. That same day, the State charged Owens with one count of first degree burglary under RCW 9A.52.020(1)(a) and (b) and two counts of second degree assault under RCW 9A.36.021(1)(a) for having entered or remained in a building and assaulting Loralyn Rainwater and/or Clarence Ward, Jr., while armed with a deadly weapon, a knife. He was arraigned on September 17, 1998; trial was set for November 16, 1998. Owens remained in custody pending trial.
On November 16, the 60th day following Owens' arraignment, the parties and counsel appeared in Pierce County Superior Court for the scheduled trial date. They waited all day, but no courtrooms were available. The case was held over for trial to commence the next day. Owens objected, arguing that November 16 was the 60th day, the last day the State could bring him to trial under CrR 3.3.
The trial also noted that the trial had been previously continued for want of available courtrooms.
Trial began the next day on November 17, 1998, the 61st day following arraignment. Owens was convicted, sentenced, and ordered to pay restitution. He timely appealed.
Believing that his appeal had been abandoned, Owens filed a personal restraint petition (PRP), raising the same issues that he had raised in his direct appeal. We consolidated his PRP with his direct appeal. Although the original record on appeal notes the lack of available courtrooms as the reason for continuing Owens' trial past the 60-day period, we directed Owens to supplement the record with the verbatim report of proceedings for November 16, 1998, and the Order for Continuance of Trial Date entered that day, a copy of which Owens had appended to his Pro Se Supplemental Brief but had not formally designated as part of the record on appeal.
RAP 9.10 provides that on our own initiative, we may direct supplementation of the record on appeal "[i]f the record is not sufficiently complete to permit a decision on the merits of the issues presented for review . . . ." RAP 1.2(a) provides that we must liberally interpret the rules on appeal "to promote justice and facilitate the decision of cases and the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules . . . ."
ANALYSIS
CrR 3.3(c) provides that a defendant in custody must be brought to trial within 60 days of arraignment, absent an exception enumerated in subsection (d). Subsection (h) governs continuances, which the trial court may grant "when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. . . . The court must state on the record or in writing the reasons for the continuance."
The record shows that Owens was not brought to trial within the requisite 60-day period because, according to the trial court, no courtrooms were available, due to unforeseeable or unavoidable circumstances, referencing the lack of available "departments," or judges. Thus, over Owens' objection, the trial court continued his trial to the 61st day.
We have previously held that courtroom unavailability or congestion alone is not good cause for postponing a criminal trial beyond the time-periods prescribed in CrR 3.3. State v. Warren, 96 Wn. App. 306, 309, 979 P.2d 915 (1999). Here, as in Warren, the record does not show how many courtrooms were actually in use when the trial court continued Owens' trial more than 60 days after arraignment; nor does the record reflect the availability of visiting judges to hear criminal cases in unoccupied courtrooms. Thus, the record does not support the trial court's conclusion that "department" unavailability to try criminal cases was good cause for the contested continuance. Absent "good cause" for the delay, the case must be dismissed with prejudice. CrR 3.3(i); Warren, 96 Wn. App. at 309, citing, Mack, 89 Wn.2d 788, 794, 576 P.2d 44 (1978). Accordingly, we do not reach Owens' other issues.
The record lists 19 departments occupied with other cases and Department 20 as "in training." The record does not reflect the availability of visiting or pro tempore judges.
We grant Owens' PRP, reverse his convictions, vacate the restitution order, and dismiss the charges against him with prejudice. 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.
ARMSTRONG, C.J. and HOUGHTON, J. concur.