Opinion
No. 56435-8-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-11458-2, Douglas D. McBroom, J., entered June 9, 2005.
Counsel for Appellant(s), Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Counsel for Respondent(s), David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Dismissed by unpublished per curiam opinion.
This is the State's appeal of a trial court decision granting a new trial to Rodney Rivers. We hold the appeal is untimely and grant Rivers' motion to dismiss.
The State charged Rodney Rivers with second degree burglary based on incidents occurring at a dry cleaning establishment on February 11, 2004. Following a bench trial, the trial court found Rivers guilty. Rivers then moved for a new trial pursuant to CrR 7.5 based on claimed ineffective assistance of counsel. After a hearing, the trial court found that defense counsel's performance was prejudicially deficient and granted Rivers a new trial in an order entered on March 14, 2005.
On March 29, 2005, more than 10 days after entry of that order, the State moved for reconsideration. The trial court denied the State's motion for reconsideration by order entered on June 9, 2005. The State filed its notice of appeal on June 14, 2005, seeking review of the order granting a new trial and the order denying reconsideration.
TIMELINESS OF APPEAL
Relying on State v. Keller, Rivers moves to dismiss the appeal, contending that the State waived its right to appeal by moving for reconsideration of the order granting a new trial rather than filing a timely appeal of that March 14, 2005 order. The State does not directly address Keller, relying on other authorities to argue that its appeal was timely under the provisions of RAP 5.2(e). We conclude that it is unnecessary to decide in this case whether Keller compels dismissal of this appeal. Rather, we conclude that the State's failure to serve and file a timely motion for reconsideration compels dismissal.
32 Wn. App. 135, 647 P.2d 35 (1982).
Supplemental Briefing Concerning Timeliness of State's Appeal.
We note that under RAP 2.2(b)(4), the State may appeal an order granting a new trial. RAP 5.2(a) requires that a notice of appeal be filed within 30 days of entry of the order to be appealed. Under RAP 5.2(e), a timely motion for reconsideration will extend this deadline. A motion for reconsideration is timely only where a party files and serves the motion within 10 days. A trial court may not extend the time period for filing a motion for reconsideration. An untimely motion for reconsideration has no effect upon the commencement of the time for filing an appeal. Here, the State did not file its motion for reconsideration until March 29, which is five days past the 10-day time limit. Because the State's motion for reconsideration was not timely, it did not extend the 30-day limit for filing the notice of appeal under RAP 5.2(e). It is undisputed that the State was required to file its notice of appeal in this case within 30 days of March 14, 2005 unless RAP 5.2(e) extended the time. It did not do so. We conclude that the State failed to file a timely notice of appeal of the order granting a new trial, and RAP 5.2(e) does not extend the time for filing an appeal in this case. Because of our decision on this procedural point, we need not reach the merits of the case.
RAP 5.2(a), (e); Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 367, 849 P.2d 1225 (1993).
Schaefco, 121 Wn.2d at 367; CR 59(b).
Schaefco, 121 Wn.2d at 367-68; CR 6(b); Metz v. Sarandos, 91 Wn. App. 357, 360, 957 P.2d 795 (1998).
Griffin v. Draper, 32 Wn. App. 611, 613, 649 P.2d 123, review denied, 98 Wn.2d 1004 (1982).
We grant the motion to dismiss the State's appeal as untimely.
COX, SCHINDLER and COLEMAN, JJ.