State v. White

¶1(dissenting) — As in State v. Hultman, 21 Wn. App. 878, 587 P.2d 599 (1978), I recognize that the decision of the majority is not only supported, but compelled by the present decisions of the Supreme Court of this state. State v. Williams, 87 Wn.2d 916, 557 P.2d 1311 (1976); State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976); State v. Jack, 87 Wn.2d 467, 553 P.2d 1347 (1976); State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975).

¶2It should be noted in State v. Williams, 87 Wn.2d 916, 557 P.2d 1311 (1976), that the court speaks of a fundamental right to a speedy trial, citing Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967). In so doing, the issue is confused because in Klopfer, the court was referring to the constitutional right to a speedy trial, a far different thing than a right to a speedy trial within a specific length of time arising from a set of rules which by their very title and terms relate to procedure only.

¶3In my opinion, the rigid and inflexible application of CrR 3.3 results in a gross miscarriage of justice in this case and my dissent is for the purpose of conveying to the citizens of Clallam County and the state of Washington, the fact that it is the present state of the decisional law with respect to CrR 3.3 which is responsible for this unwholesome situation whereby a rapist is to be placed beyond the power of the law to punish him because his trial date was set 6 days over the 60-day limit. There is no claim of prejudice arising from the lapse of that 6-day period. The enormity of the situation is compounded by the colloquy at the time of the trial setting. That colloquy is set forth in the majority opinion.

¶4In my judgment, defendant's trial counsel4 had an obligation on December 22 to plainly state to the trial judge that his willingness to accept a February date did not mean that he was willing to go beyond 60 days from the date of *444initial appearance.5 His conduct trapped the trial judge and was acceded to by his client who may be presumed to have been thoroughly experienced in the ways of criminal procedures, he having been twice previously convicted of serious felonies.6 The defendant should not be permitted to profit by the misleading silence of his counsel and of himself.

¶5In other contexts, the Supreme Court has held that it has inherent power to waive the requirements of its own rules in particular cases when the purposes of justice so require. Ashley v. Superior Court, 83 Wn.2d 630, 521 P.2d 711 (1974); Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 P.2d 197 (1973); O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969). While the exercise of the power has not been without criticism (see dissents in Carter v. University of Wash., 85 Wn.2d 391, 407, 536 P.2d 618 (1975) and Iverson v. Marine Bancorporation, supra),it is now a recognized practice in this jurisdiction.

¶6In my opinion, justice to the public requires that CrR 3.3 be not mechanically applied but rather, on the present facts, that the draconian remedy of dismissal be avoided, something which cannot be done at the level of the Court of Appeals, but can be done by the Supreme Court since the rules are theirs, not ours. The propriety of reconsidering *445the rigid application of the rule is reinforced because the vice of the old rule has now been recognized by the amendment of CrR 3.3. Subsection (d) thereof now places the duty upon the defendant to object within 10 days of receiving notice of the trial setting if he does want a trial within the 60- to 90-day limits, and failure to object timely is deemed a waiver of the right.

¶7Therefore, I dissent.

¶8Reconsideration denied July 2, 1979.

¶9Appealed to Supreme Court August 21, 1979.