Opinion
No. 21901-1-III.
Filed: June 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-01142-3. Judgment or order under review. Date filed: 03/14/2003. Judge signing: Hon. Robert G Swisher.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan P1, Kennewick, WA 99336.
Douglas Rose was convicted of possession of methamphetamine. Claiming his speedy trial rights were violated, he appeals. We reverse and dismiss the charge.
On November 17, 2002, Officer Jon Law stopped Mr. Rose for driving in an improper lane and for defective equipment. The officer asked him for his driver's license, insurance, and registration. Mr. Rose gave the information to Officer Law, who then conducted a radio check. In the check, the officer learned that Mr. Rose had a prior felony conviction. Officer Law asked and received consent from him to search the vehicle. The officer found a gun and arrested Mr. Rose for felon in possession of a firearm.
While being booked into jail, the police discovered a small glass vial with a white powdery residue in it. The substance tested positive for methamphetamine.
On December 10, 2002, Mr. Rose was charged in Benton County District Court with unlawful possession of a firearm. He appeared and counsel was appointed. On December 11, the State asked the district court to dismiss the charges because they were going to be refiled in superior court. On December 12, the State charged Mr. Rose in superior court with unlawful possession of a firearm. Mr. Rose made an initial appearance in superior court on that date, with appointed counsel present. Trial was set for February 10, 2003.
A pretrial hearing was scheduled for January 31, 2003. Defense counsel was ill so the court continued the hearing. Mr. Rose expressed concerns about his speedy trial rights and refused to sign a waiver.
On February 7, 2003, the court held the pretrial hearing. The State requested and received a one-week continuance because a witness was unavailable.
Trial began on February 18, 2003. The jury acquitted Mr. Rose on the unlawful possession of a firearm charge, but found him guilty of possessing methamphetamine. This appeal follows.
Mr. Rose claims his speedy trial rights were violated. He asserts that trial was not set within the time limits in former CrR 3.3(c)(2) (2001). A defendant who is first charged by complaint in district court and is detained, as was Mr. Rose, must be brought to trial no later than 60 days after the date of arraignment less "time elapsed in district court." Former CrR 3.3(c)(2)(i). "Time elapsed in district court" commences on the date of the first appearance in district court following the filing of the complaint. Former CrR 3.3(c)(2)(ii). Failure to comply with the time limits of CrR 3.3 will result in dismissal with prejudice. Former CrR 3.3(i) (2001).
Mr. Rose was initially charged in district court on November 20, 2002. He was arraigned in superior court on December 13, 2002. Under former CrR 3.3(c)(2)(i), trial had to begin no later than 60 days from December 13, less the time elapsed in district court, that is, by January 21, 2003. It did not.
The court set a trial date of February 10, 2003, at the arraignment. Once the trial court sets the initial trial date and the parties know of it, the defendant has 10 days in which to object and move to have the case reset within the speedy trial period. State v. Chenoweth, 115 Wn. App. 726, 736-37, 63 P.3d 834, review denied, 150 Wn.2d 1011 (2003) (citing CrR 3.3(f)(1)). A defendant who fails to object waives any speedy trial violation. City of Kennewick v. Vandergriff, 109 Wn.2d 99, 101, 743 P.2d 811 (1987).
Neither Mr. Rose nor his counsel objected within 10 days to the February 10, 2003 trial date as required by the rule. Under former CrR 3.3(f)(1) (2001), he waived any objection to this violation. But Mr. Rose's trial still had to begin by February 10, 2003, absent any extensions or continuances permitted under former CrR 3.3.
On February 7, the State requested a one-week continuance due to witness availability. The court granted the request under former CrR 3.3(h)(2) (2001). The unavailability of a material state witness is a valid reason to continue a trial under former CrR 3.3(h)(2). State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936, review denied, 122 Wn.2d 1008 (1993). But to do so, there must be a valid reason for the unavailability; the witness must become available within a reasonable time; and there must be no prejudice to the defendant. Id.
Nothing in the record indicates the identity of the State's unavailable witness. The State's lone (and presumably unavoidable) witness, however, was Officer Law. If he was indeed unavailable, the record fails to reflect any reason for his unavailability. Accordingly, we cannot say there was a valid excuse for his absence. The court did not make an adequate record for granting a continuance. The time for speedy trial under former CrR3.3(h)(2) was not tolled. See Nguyen, 68 Wn. App. at 914.
The State, however, claims that the court also extended the trial date on January 31, 2003 pursuant to former CrR 3.3(d)(8) (2001). The court did continue the January 31 pretrial hearing for a week because defense counsel was ill. Illness is an example of a circumstance justifying a continuance that falls within the purview of former CrR 3.3(d)(8). State v. Andrews, 66 Wn. App. 804, 832 P.2d 1373 (1992), review denied, 120 Wn.2d 1022 (1993). But this rule only applies to situations "[w]hen a trial is not begun on the date set. . . ." Former CrR 3.3(d)(8). Trial was not set to begin and the court merely granted a continuance of the pretrial hearing. Former CrR 3.3(d)(8) is thus inapplicable.
The court clearly did not extend the trial date because of counsel's illness. In fact, when Mr. Rose asked about the trial date, the court responded that the February 10 date was now "at risk." Report of Proceedings (Jan. 31, 2003) at 2.
Mr. Rose was not brought to trial by February 10, 2003, as required. If a trial is held beyond the speedy trial period, the defendant need not show any prejudice for dismissal of the charge. State v. Williams, 85 Wn.2d 29, 32, 530 P.2d 225 (1975). Here, the charge must therefore be dismissed.
Because the speedy trial issue is dispositive, we need not address the other issues raised in this appeal.
The conviction is reversed and the charge dismissed with prejudice.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SCHULTHEIS, JJ., concur.