Opinion
No. 30052-4-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 02-1-00343-5. Judgment or order under review. Date filed: 02/06/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Carol L. Case, Mason Co Pros Office, PO Box 639, Shelton, WA 98584-0639.
John A. Pitts appeals his conviction of second degree murder with a deadly weapon enhancement, arguing that the trial court violated his speedy trial rights when it failed to set a specific trial date at the time it continued his trial beyond the 60-day speedy trial period. But Pitts is precluded from raising this issue because he did not object to the timeliness of his trial setting below. We affirm.
FACTS
The trial court arraigned Pitts on September 19, 2002, setting an omnibus hearing for October 3, and trial for the two-week trial term starting November 12. The trial court noted that the 60-day speedy trial period expired on November 18. Pitts did not object. On November 15, Pitts waived his timely trial rights through December 2002.
At a December 9 pretrial hearing, defense counsel presented the court and the State with a new list of witnesses. The trial court granted the State's motion to continue the case to the trial term starting January 13, 2003, to allow the State time to contact the newly disclosed witnesses. The court set a pretrial hearing for January 8. Pitts requested that the trial court set a specific trial date, rather than designating the start date for the trial term, so that he could more specifically notify defense witnesses. The trial court referred the parties to the court administrator to obtain a more accurate start date. Pitts did not otherwise object to the timeliness of setting the new trial date during the January 13 term.
The January 8 pretrial hearing was postponed to January 9. At that hearing, the parties confirmed a trial date of January 21. Pitts did not object to this trial date.
Trial commenced on January 21. Following a four-day trial, a jury convicted Pitts as charged. Pitts appeals. For the first time on appeal, Pitts alleges the trial court violated his timely trial rights under former CrR 3.3 (2001) and asserts that former CrR 3.3(i) requires dismissal of all charges.
ANALYSIS
Pitts contends that the trial court violated his timely trial rights because it failed to comply with former CrR 3.3(f)(2) when it did not set a specific trial date at the time it granted the December 9, 2002 continuance. He argues that because of this failure, the continuance was invalid and the trial date was set well outside the 60-day speedy trial period. He also asserts that this failure removed any requirement that he object to the trial date within 10 days as required by former CrR 3.3(f)(2).
On December 9, 2002, the trial court granted the State's request for a continuance to allow it to investigate the new witnesses the defense had just disclosed. Former CrR 3.3(h)(2) provides:
On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance.
Former CrR 3.3(f)(2) provides in part:
When the court determines that the trial date should be reset for any reason, including but not limited to the applicability of a period of extension pursuant to section (d) or a period of exclusion pursuant to section (g), the court shall set a new date for trial which is within the time limits prescribed and notify each counsel or party of the date set as provided in subsection (f)(1).
Former CrR 3.3(h) continuances are excluded from the speedy trial period under former CrR 3.3(g)(3).
(Emphasis added).
To the extent he is arguing that the trial court set the new trial date outside the 60-day period even presuming the continuance was valid, Pitts waived his right to object because the court set the trial date more than 10 days after the January 9 hearing and he failed to object within 10 days as required under former CrR 3.3(f)(2):
A party who objects to the date set on the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial date within those time limits. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a trial commenced on such a date or on an extension of such date granted pursuant to subsection (d)(8), is not within the time limits prescribed by this rule.
Although "[t]he court is ultimately responsible for ensuring a speedy trial for the defendant under CrR 3.3," defense counsel "bears some responsibility for asserting CrR 3.3 rights of a client and assuring compliance with the rule before the speedy trial period expires." State v. Carson, 128 Wn.2d 805, 815, 912 P.2d 1016 (1996). The "speedy trial rules were promulgated to give the defendant a prompt trial once prosecution is initiated;" they were not intended to be "`a trap for the unwary.'" Carson, 128 Wn.2d at 815 (quoting State v. Fladebo, 113 Wn.2d 388, 394, 779 P.2d 707 (1989)).
In Carson, our Supreme Court refused to entertain the defendant's belated objection to the timeliness of his trial stating:
[D]efense counsel knew Petitioner's case would not be set within the 60 days required by CrR 3.3, but he did not object. He did not assert his client's CrR 3.3 rights nor notify the court or the State of his intent to rely on CrR 3.3 until almost two weeks after the speedy trial period had expired.
128 Wn.2d at 816. Similarly, Pitts waived any objection he may have had that his trial commenced on a date not within the time limits prescribed by former CrR 3.3. Furthermore, Pitts was not substantially prejudiced by the proper continuance of his trial.
We affirm.
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.
SEINFELD, J. and ARMSTRONG, J., concur.