36 Wn. App. 726, STATE v. SCHMIDT
CITE: 36 Wn. App. 726, 676 P.2d 1044
STATE v. SCHMIDT
CAUSE NUMBER: 9322-3-I
FILE DATE: February 27, 1984
CASE TITLE: The State of Washington, Appellant, v. Brian Russell Schmidt, et al, Respondents. NATURE OF ACTION: Following the Court of Appeals reversal of the dismissals of the defendants' separate prosecutions at 30 Wn. App. 887, the Supreme Court at 100 Wn.2d 1020 remanded the case for reconsideration in light of STATE v. DARDEN, 99 Wn.2d 675.
Court of Appeals: Upon the State's concession that the timing of the defendants' preliminary hearings violated the speedy trial rule as interpreted in DARDEN, the court DISMISSES the prosecutions.
COUNSEL: NORM MALENG, PROSECUTING ATTORNEY, and CAROL HEPBURN, DEPUTY, for appellant.
MICHAEL FILIPOVIC, ROSEMARY BORDLEMAY, GEORGE YEANNAKIS, LEWIS NOMURA, and RONALD KESSLER of SEATTLE-KING COUNTY PUBLIC DEFENDER ASSOCIATION, for respondent Schmidt.
JOHN WOLFE, for respondent Wright.
LAURENCE FINEGOLD and CYNTHIA S. WILLS, for respondent Marlatt.
AUTHOR OF MAJORITY OPINION: Swanson, J.-
MAJORITY OPINION:
This consolidated case is another in a group of cases remanded to us by the Supreme Court for reconsideration in light of STATE v. DARDEN, 99 Wn.2d 675, 663 P.2d 1352 (1983), a case decided after the filing of our opinion.
Schmidt, Marlatt, and Wright were charged with second degree burglary, first degree arson, and a Uniform Controlled Substances Act charge respectively. Because of the State's failure to have a preliminary hearing within 100 days of arrest as required by the interpretation placed on CrR 3.3 by the Supreme Court in STATE v. EDWARDS, 94 Wn.2d 208, 616 P.2d 620 (1980), even though trial occurred within 100 days of bindover, all charges were dismissed. The State appealed. A majority of this court determined that the interpretation of CrR 3.3 by the EDWARDS decision should not apply to cases heard prior to its announcement. Consequently, we set aside the dismissals.
The Supreme Court granted review of our decision but deferred a hearing pending a final decision in STATE v. DARDEN, SUPRA. After the decision was announced in DARDEN, which applied the interpretation given to CrR 3.3 in STATE v. EDWARDS, SUPRA, retroactively to cases which arose prior to EDWARDS, this case was remanded to us for reconsideration in light of DARDEN.
We asked for briefs from both parties addressing the impact of DARDEN. The State has responded by letter conceding that the Supreme Court's opinion in DARDEN is controlling and mandates dismissal of the prosecution. We agree that the Supreme Court's opinion in DARDEN applying the EDWARDS interpretation of CrR 3.3 retroactively is controlling. Therefore, we modify our earlier opinion filed herein on January 11, 1982 and affirm the dismissal of the criminal charges filed against Brian Russell Schmidt, Shannon Lee Wright, and Roger L. Marlatt.
CONCURRING JUDGES:
Corbett, A.C.J., and Ringold, J., concur.
POST-OPINION INFORMATION: