13 Wn. App. 855, THE STATE OF WASHINGTON, Respondent, v. PAUL WALTER REID, Appellant
[No. 1115-3. Division Three. Court of Appeals July 7, 1975.]
THE STATE OF WASHINGTON, Respondent, v. PAUL WALTER REID, Appellant.
[1] Criminal Law - Trial - Time of Trial - Dismissal for Delay - Continuance - Justification. Continuance of a criminal proceeding pursuant to CrR 3.3(e) must be supported by reasons appearing in the record in order that such period be excluded in determining delay which may result in a dismissal under CrR 3.3(b) or (c). [See 21 Am. Jur. 2d, Criminal Law 246.]
GREEN, J., concurs by separate opinion.
Appeal from a judgment of the Superior Court for Ferry County, No. 5024, B. E. Kohls, J., entered March 13, 1974. Reversed. Prosecution for larceny. The defendant appeals from a conviction and sentence.
Richard A. Perry, for appellant.
Granville Egan, Prosecuting Attorney, for respondent.
McINTURFF, C.J. -
The defendant was found guilty of grand larceny. He appeals. Because our decision rests upon the construction of CrR 3.3, it is unnecessary to state the facts relating to the grand larceny charge. The facts necessary to our decision are stated chronologically:
October 20, 1973 - Defendant was arrested.
October 26, 1973 - Defendant refused arraignment in
Okanogan County because he
wanted to be arraigned in Ferry
County, where he was arrested.
July 1975] STATE v. REID 857
13 Wn. App. 855, 537 P.2d 799
February 13, 1974 - Defendant moved to dismiss for
failure to bring the case to trial
within 60 days as required by CrR
3.3(c).
February 14, 1974 - Defendant's motion was denied,
basically because the trial court felt
that the delay was the result of de-
fendant's own actions.
March 12, 1974 - The defendant's trial took place.
CrR 3.3(c) provides:
Criminal trials shall take precedence over civil. A defendant unable to obtain pretrial release shall have priority and the charge shall be brought to trial within 60 days following the preliminary appearance.
There can be no doubt that the period of time from November 28, 1973, until January 21, 1974, can properly be excluded from the time requirement found in CrR 3.3(c). CrR 3.3(d) (1), (e). However, computing the minimum periods of time as follows: 11/8/73 to 11/28/73 Date of arraignment to
plea of not guilty by
reason of insanity 20 days
1/21/74 to 3/12/74 Receipt of result of psy-
chiatric examination to
trial 50 days
the court had 40 days after receipt of the result of the psychiatric examination to bring the case on for trial. In State v. Williams, 85 Wn.2d 29, 31-32, 530 P.2d 225 (1975), the court stated:
If the trial court delayed the setting of the appellant's case for one of these reasons, the record does not show it. When the court exercises the discretion granted under these rules, it should make a record of its act and its reason, so that the matter can be subjected to appellate review if proper application is made.
(Italics ours.) The Williams case further stated at page 32: If continuances are necessary, they should be sought or entered upon formal motion, with the reasons therefor being made a matter of record.
858 STATE v. REID [July 1975
13 Wn. App. 855, 537 P.2d 799
Accordingly, the Williams case requires that we reverse the defendant's conviction because no justification for noncompliance with CrR 3.3(c) was shown.
[1] It is true that the defendant did delay the trial by his own actions in failing to cooperate with the sanity commission, but that delay can only be accounted for through January 21. Although the delay caused by the unavailability of the complaining witness was reasonable, there is nothing in the record to indicate how long Mr. Sublie was in the hospital, or even that the trial was continued for that reason beyond January 21. There is nothing in the record after January 21 that would indicate any reason for the additional 10 day delay. The trial docket may have been crowded but there is no evidence of such justification in the record. Since the defendant properly moved for dismissal prior to trial, his right to speedy trial under CrR 3.3 was properly asserted. ABA Standards Relating to Speedy Trial 4.1, at 41 (approved draft 1968); Annot. 57 A.L.R.2d 302, 336 (1958). Judgment of the superior court is reversed, and the action against the defendant is dismissed.
MUNSON, J., concurs.
GREEN, J. (concurring) - I concur for the reason stated in my concurring opinion in State v. Espeland, 13 Wn. App. 849, 537 P.2d 1041 (1975).