Opinion
No. 51808-9-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-03571-6. Judgment or order under review. Date filed: 02/03/2003. Judge signing: Hon. Carol Schapira.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Maureen Marie Cyr, Washington Appellate Project, 1305, 4th Ave Ste 802, Seattle, WA 98101-2402.
Hugh Stover/Doc# 923342, 1313 N. 13th Ave., Walla Walla, WA 99362-1065.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Hugh Stover appeals the judgment and sentence entered following his conviction for robbery in the first degree while armed with a deadly weapon. We reject Stover's argument that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial under CrR 3.3 and affirm.
FACTS
Stover was charged by amended information with two counts of robbery in the first degree while armed with a deadly weapon. On August 19, 2002 Stover was assigned a trial date of November 6, 2002 with a speedy trial expiration date of November 12, 2002. A new defense attorney substituted in October 2002 when defense counsel became ill, and the trial date was continued to December 3 with an expiration of December 10, 2002. On December 2 defense counsel and the State were available for trial; the case was held until December 6.
Count 2 was subsequently dismissed under the authority of State v. Molina, 83 Wn. App. 144, 920 P.2d 1228 (1996) (when robbery occurs in a commercial establishment multiple counts are justified only where there is a separate taking from each employee).
On Friday, December 6, when the calendar was called for Monday, December 9, the prosecutor was in another trial (State v. Ingram) and unavailable. Without objection the presiding judge orally ruled that Stover's case would be "held" from December 9 to December 12. At the time trial in Ingram was expected to last through December 11 or 12 and the prosecutor also had at least three other cases on the calendar with expiration dates earlier than Stover's. No written order was entered at the time.
The record indicates that the prosecutor had out-of-state witnesses scheduled to fly in and testify on Tuesday, December 10 and that at the time of the extension there were no on-going plea negotiations.
Late in the afternoon on Monday, December 9, the defendant in Ingram unexpectedly pleaded guilty. Stover's case was assigned for trial and began on December 12, 2002. On that date the presiding court entered a written order extending Stover's trial date from December 9 to December 12, 2002. The order was signed on December 12 but was dated December 9.
Stover moved to dismiss for violation of his right to a speedy trial under CrR 3.3. The trial court viewed a videotape of the December 6 calendar call and found that when the presiding judge "held" Stover's case, it granted an extension under former CrR 3.3(d)(8) due to the prosecutor's unavailability. The court also found that it was a clerical oversight that a written order granting the extension was not entered on December 6 and that the December 12 written order merely memorialized the presiding judge's oral extension. Stover appeals.
CrR 3.3 was amended effective September 1, 2003.
DECISION
The speedy trial extensions prior to December 9 are not at issue; it is only the extension from December 9 to December 12 that is at issue. When a court grants an extension under CrR 3.3(d)(8), the court must "state on the record or in writing the reasons for the extension." Stover concedes that the presiding judge orally stated on the record that the reason for the extension was the prosecutor's unavailability. Stover also concedes that a prosecutor's unavailability for trial may be an unforeseen and unavoidable circumstance that justifies an extension under CrR 3.3. Stover agrees that the extension from December 9 to December 12 would not be error if the prosecutor indeed were unavailable. He argues, however, that when the prosecutor became available late in the afternoon of December 9 and did not notify defense counsel of his availability, the prosecutor failed to exercise good faith and due diligence and that dismissal is required.
See State v. Raper, 47 Wn. App. 530, 539, 736 P.2d 680 (1987).
See State v. Ross, 98 Wn. App. 1, 4-5, 981 P.2d 888 (1999) (right to speedy trial imposed on prosecution a duty of good faith and due diligence; failure to comply strictly with speedy trial rule requires outright dismissal regardless of whether defendant shows prejudice).
Stover's argument fails. Stover did not raise this argument in the trial court when he argued his motion to dismiss and he cannot raise it for the first time on appeal. Moreover, the prosecutor did not become available until after the calendar call for cases on December 10 and apparently had another case on the December 10 calendar. It is undisputed that the prosecutor properly notified the presiding court of his availability. Stover has cited no authority that it was a violation of good faith and due diligence not to notify defense counsel when the other trial ended earlier than anticipated. The next day, December 11, Stover's case was called and assigned for trial on December 12, within the speedy trial expiration.
State v. Barton, 28 Wn. App. 690, 693, 626 P.2d 509 (1981) (motion to dismiss for violation of speedy trial under CrR 3.3 must be specific enough to direct the court's attention to the provision of the rule defendant seeks to invoke and basis of motion in order to preserve the issue for appeal; trial court need not rule on every possible aspect of CrR 3.3 in response to general incantation of rule or issue raised concerning one of its provision).
Although the presiding court on December 6 could have granted a five-day extension, it granted only a three-day extension, apparently based on a conservative estimate of when the prosecutor might be available for trial.
Stover also contends that it was error for the presiding judge to retroactively grant the extension from December 9 to December 12 and that the trial court compounded the error. He argues that State v. Raper, which holds that the trial court may retroactively grant a five-day extension under CrR 3.3(d)(8) after the speedy trial expiration, is inapplicable because there the parties were under a misapprehension of the expiration date due to a clerical error. But here the extension was granted before the speedy trial expiration, and as Stover concedes, the presiding judge without objection orally granted the extension on December 6 and articulated a proper basis for it. Subsequent entry of the written order merely memorialized the ruling.
Affirmed.
SCHINDLER and APPELWICK, JJ., concur.