Opinion
No. 51927-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-01754-6. Judgment or order under review. Date filed: 01/31/2003. Judge signing: Hon. Kenneth Cowsert.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Thacker — Informational only (Appearing Pro Se), 1329 Hudson, Port Townsend, WA 98368.
Counsel for Respondent/Cross-Appellant, Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
A properly granted continuance tolls the speedy trial period. The trial court granted a continuance on the speedy trial expiration date. While the court did not clearly articulate the reason for the continuance orally or in writing, such a failure does not warrant reversal where the basis for the continuance is sufficiently clear for appellate review. Here, the court granted the continuance because defense counsel was not present for the plea hearing. This was an appropriate reason and the continuance was required in the administration of justice. In addition, the defendant alleges no prejudice. Because the continuance was properly granted, there was no speedy trial violation. We therefore affirm.
FACTS
On August 7, 2002, Troy Thacker was arraigned on charges of attempting to elude a pursuing police vehicle and driving under the influence. Because Thacker was held in custody, his initial speedy trial expiration date was October 6, 2002. The matter was twice continued at defense request, with a new speedy trial expiration date of Monday, October 21, 2002. The parties expected Thacker to enter a plea on October 10, 2002, but no hearing was held because the prosecutor neglected to calendar the matter and Thacker was not transported. The prosecutor and defense counsel agreed to come back for a plea hearing on October 18, 2002, but the prosecutor again neglected to calendar the matter and Thacker was not transported on that date.
Recognizing the impending speedy trial expiration, the prosecutor and defense counsel agreed to schedule the plea for Monday, October 21, 2002, the speedy trial expiration date. Defense counsel failed to appear for the hearing on October 21, apparently due to a miscommunication. The prosecutor explained the speedy trial problem to the court and requested that Thacker be released from custody or, in the alternative, that the case be continued to Friday, October 25, 2002. Noting that Thacker and the prosecutor were present but that Thacker's attorney was not present, the court continued the case to Friday. October 25, 2002, for plea or trial. On Friday, October 25, 2002, the defense moved to dismiss pursuant to CrR 3.3 and CrR 8.3. The court found no prosecutorial misconduct, but did find that there had been a miscommunication between the parties, and that that miscommunication had led to the prosecutor's earlier failure to calendar the matter for plea, and the defense attorney's failure to appear for the hearing on Monday, October 21, 2002. The court noted that CrR 3.3(h)(2) allows for continuances on the court's motion if required in the administration of justice if the defense is not prejudiced. Finding no prejudice, the court denied the motion to dismiss. The court released Thacker on his own recognizance, and the matter was continued again by agreement. In January 2003, Thacker was found guilty in a stipulated bench trial. This appeal follows.
"CrR 3.3 was amended in 2003. The references to CrR 3.3 herein refer to the version of the court rule in effect at the time of these proceedings."
DISCUSSION
Thacker contends that his CrR 3.3 speedy trial rights were violated. We conclude that no speedy trial violation occurred when the court continued the case on the last day of speedy trial, Monday October 21, 2002. A properly granted continuance tolls the speedy trial period. Former CrR 3.3(g)(3).
A trial court may continue a case on the motion of the defense or the prosecution, or on its own motion, when required in the administration of justice and when the defendant will not be substantially prejudiced in the presentation of the defense. Former CrR 3.3(h)(2); State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046 (2001). We review an order granting a continuance for an abuse of discretion and we will not disturb a trial court's grant or denial of a continuance absent a showing of manifest abuse of discretion. State v. Warren, 96 Wn. App. 306, 309, 979 P.2d 915 (1999); State v. Brown, 40 Wn. App. 91, 697 P.2d 593 (1985).
A continuance granted by the trial court is an abuse of discretion only if it can be said that the decision was "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Woods, 143 Wn.2d at 579 (quoting In re Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103 (1986) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Here, the matter could not proceed on October 21 by way of trial or change of plea because defense counsel did not appear at the hearing. The continuance was required in the administration of justice, and Thacker does not argue that he was prejudiced. The continuance was therefore appropriately granted under former CrR 3.3(h)(2).
As Thacker argues, former CrR 3.3(h)(2) required the court to state the reasons for the continuance. While the court here did not clearly articulate the reasons for the continuance in so many words or in a written order, this deficiency does not warrant reversal. Non-compliance with former CrR 3.3(h)(2) is harmless where, as here, the court's reasons are evident in the record and appellate review is possible. See State v. Jack, 87 Wn.2d 467, 469, 553 P.2d 1347 (1976) (The trial court's reasons are sufficient if supported by "facts . . . articulated so that appellate review could lead to precedential guidelines as to what factors justify delay"); see also State v. Greene, 49 Wn. App. 49, 55, 742 P.2d 152 (1987); State v. Walker, 16 Wn. App. 637, 639, 557 P.2d 1330 (1976).
Because the matter was properly continued before the expiration of the speedy trial period, the time between October 21 and October 25, 2002 was excluded from the speedy trial calculation under former CrR 3.3(g)(3), and Thacker's CrR 3.3 right to a speedy trial was not violated.
Affirmed.
APPELWICK and BECKER., JJ., concur.