Chief Civil
Judge James
Doerty
ROGER W. KNIGHT, )
)
plaintiff, )
) MOTION FOR ORDER TO SHOW
v. ) CAUSE WHY STATUTORY WRIT
) OF PROHIBITION SHOULD NOT BE
STATE OF WASHINGTON, KING ) GRANTED ON BASIS OF
DIVISION, the Honorable
BARBARA ) NOTICE
OF CHARGE.
LOUISE LINDE, in her capacity as Judge )
of the King County District Court,
West )
Division,
NORM MALENG,
Prosecutor, and
KATHRYN Y. KIM, )
Deputy Prosecuting Attorney, )
)
defendants. )
____________________________________)
MOTION AND
RELIEF REQUESTED
Comes
now ROGER W. KNIGHT, plaintiff, to move for a an order to show cause why a Statutory
Writ of Prohibition,
Chapter 7.16 RCW should not be granted on the basis of
unreasonable delay in informing Mr. Knight of the Complaint filed on April 17,
2003 in State v. Knight,
King County
District Court, West Division No. C438381, in violation of CrRLJ 3.3 and the
Sixth and
Fourteenth Amendments and
Article I Section 22 of the
Washington Constitution.
EVIDENCE
AND FACTS IN SUPPORT OF MOTION
In
response to Mr. Knight's original
Application for Writ of Prohibition in this
case, the State, through
Ms. Jennifer L. Worley, Deputy Prosecuting Attorney,
filed its State's Response and Opposition to Petitioner's Petition and
Application for Writ of Certiorari and Writ of Prohibition (State's Response),
and served a copy on Mr. Knight through the United States Postal Service. Mr. Knight received his copy of this document
on
For the
first time, Mr. Knight had, as Appendix A to this State's Response, a complete
docket sheet to No. C438381.
From
the Appendices attached to the State's Response and from the Declaration of
Roger W. Knight in Support of Application for Statutory Writ of Certiorari or
Statutory Writ of Prohibition,
Chapter 7.16 RCW (Knight Declaration I), Declaration of Roger W. Knight in Support of a
Writ of Prohibition on Basis of Unreasonable Delay in Notice (Knight
Declaration II), and the Declaration of
John R. Scannell
in Support of a Writ of Prohibition on Basis of Unreasonable Delay in Notice (Scannell Declaration) and other evidence, the following
facts are set forth:
The
case arises from an incident on
The
Compliant was filed with the District Court on April 17, 2003, less than one
year after the incident of August 4, 2002 and within the limitation set by
RCW
9A.04.080(1)(j) for misdemeanors. A
charge of Driving While License Suspended 3rd degree is defined by
RCW
46.20.342(1)(c) to be a misdemeanor.
On
On
However,
the Division of Child Support of the
Department of Social and Health Services,
agencies of the sovereign represented as the plaintiff in this case, served by
personal service Mr. Knight with the notice required by
RCW 74.20A.320(1) at
501 South Jackson Street, Seattle, Washington on March 11, 2003. (This is subsequent to the incident of
On
After
that hearing King County Deputy Sheriffs Jana Marie Wilson and Gregg Edward
Walker arrested Mr. Knight and booked him into King County Jail.
On
Therefore,
on
Commissioner
Ponomarchuk ordered Mr. Knight to provide his home
address and Mr. Knight immediately complied by writing his home address on a
piece of paper then held by
Ms. Sandvik:
(redacted for this website) Seattle, Washington 98(redacted for this website).
C. Legge states in an Affidavit of Service used by the State
in the District Court to provide evidence of personal service as required by
RCW 74.20A.320(1) that on May 8, 2001, she/he served on a woman who did not
give her name at (redacted for this website), Seattle, Washington. It is upon this service the alleged license
suspension in September 2001 is based.
On
From June 1991 through November 2000
I lived with my parents at (redacted for this website),
I changed my listed address with the
Boeing Employees Credit Union to (redacted for this website) and I receive the monthly
statements on my account at this address.
I changed my listed mailing address with Ohio Casualty Company and their
local agent in Port Townsend for the purpose of car insurance to
Mr. Knight further declared:
Between
During the morning of
On
Voter registration. Repeatedly
informing deputy sheriffs where he lived.
Filling out the change of address form for the
Department of Licensing. Mr.
Knight duly and repeatedly informed the authorities of his residence and office
address, voice and facsimile telephone numbers.
During May 2003, it became apparent that the
Postal Service was no
longer willing to deliver mail to
On
Nevertheless,
Ms. Lianne Malloy, WSBA #15028, Assistant Attorney General
representing the State in Knight v. State
and other cases has faithfully mailed documents to
Somehow, the District Court Division
of the King County Prosecutor’s Office found out about
On
After the hearing in Burien, Mr.
Knight returned to
Mr. Knight has attended every
hearing scheduled in this case since.
From
From
LEGAL
AUTHORITY
STATUTORY WRIT IS THE APPROPRIATE
REMEMDY
Butts v. Heller, (1993)
69
CrRLJ 3.3 AS IT EXISTED PRIOR TO
The
Compliant in District Court No. C438381 was filed on
CrRLJ and CrR
ARE INTERPRETED CONSISTENTLY WHERE LANGUAGE IS IDENTICAL OR NEAR IDENTICAL
City of Seattle v Guay, (2003) 150
.
. . we strive to construe the criminal rules for courts of limited jurisdiction
and those for superior courts as consistently as possible, . . . See
City of Seattle v. Crockett, 87 Wn. 2d 253, 256, 551 P. 2d 740 (1976) (the procedural rules
“were designed to operate in conjunction with one another and not to require
meaningless and useless duplication”);
State
v. Mack, 89 Wn. 2d 788, 792, 576 P. 2d 44 (1978)
(“The identity of purpose, together with the philosophy enunciated in
Crockett, warrants our construction of
both rules in a consistent manner.”).
CrR 3.3(c)(1) reads in relevant part:
If
the defendant is not detained in jail or subjected to conditions of release,
the defendant shall be arraigned not later than 14 days after that appearance
in superior court which next follows the filing of the information or
indictment. . . . A defendant released from jail whether or not
subjected to conditions of release pending trial shall be brought to trial not
later than 90 days after the date of arraignment.
CrRLJ 3.3(c)(1) reads in relevant part:
If
the defendant is not detained in jail or subjected to conditions of release,
the defendant shall be arraigned not later than 15 days after that appearance
in superior court which next follows the filing of the information or
indictment. . . . A defendant released from jail whether or not
subjected to conditions of release pending trial shall be brought to trial not
later than 90 days after the date of arraignment.
The two provisions are identical except that for
courts of limited jurisdiction, the time for arraignment is 15 days.
BECAUSE OF IDENTITY OF
RELEVANT LANGUAGE,
STRIKER RULE
APPLIES TO CrRLJ 3.3 AS IT APPLIES TO CrR 3.3.
State v. Striker, (1976)
87
Where as here, the rules have not
been followed and, through no fault or connivance of the defendant, a long
period of delay has occurred between the filing of the information and the time
the defendant is brought before the court, the question becomes: What is the
applicable date from which to calculate the period in which he must be brought
to trial?
The
United States Supreme Court has
said that the right to a speedy trial, guaranteed under the
sixth amendment to
the United States Constitution, which was made applicable to the states in
Klopfer v. North Carolina, 386 U.S. 213, 18 L.
Ed. 2d. 1, 87
And from this concluded at
87
. . . a due regard for the
protection of the petitioners’ constitutional rights, as well as consideration
of policy in the administration of justice, compel us to the conclusion that
where, contrary to the expectation expressed in the rules, a delay has occurred
between the filing of the information and the bringing of the accused to court,
CrR 3.3 must be deemed to operate from the time the
information is filed.
Cited by
Instead,
we find that
Striker and its
underlying policies govern by analogy the resolution of this present case. The expectation inherent in CrRLJ 3.3(d)(4) is that the defendant’s
appearance before the court will occur shortly after the mandate for a new
trial is filed in the municipal court.
If that expectation is met, a defendant awaiting a new trial after
appeal will receive a speedy trial if the time is calculated from the date of
that appearance.
However, if the defendant is not
brought before the trial court within a reasonable time after the mandate for a
new trial is filed, the expectation of the rule is not satisfied. Under such circumstances, the defendant’s speedy
trial right will commence from the date the trial court receives the
mandate. Cf.
Striker. Otherwise, the
prosecution of the new trial could be delayed indefinitely. This result would directly conflict with the
public’s interest in having criminal matters resolved in a timely manner. See CrRLJ 3.3(b)
(“Criminal trials shall take precedence over civil trials.”);
Striker, at 872 n. 2 (even if not under
arrest or otherwise restrained in his freedom, a defendant can be seriously
disadvantaged by delay following charge, due to anxiety, public suspicion, and
difficulty in securing witnesses).
Hilton urges us to take the position
expressed by 2 American Bar Ass’n, Standards for Criminal Justice, Std.
12-2.2 (1978), which is comparable to the view taken in the proposed amendment
to CrR 3.3(d)(4). However, absent adoption of a similar
amendment to CrRLJ 3.3(d)(4),
we cannot hold that a defendant’s speedy trial right automatically commences
from the date the municipal court receives the mandate for a new trial. Instead, pursuant to
Striker, we are
constrained to hold that a defendant’s speedy trial right is calculated from
the date of defendant’s appearance before the court so long as that appearance
occurred within a reasonable time from the filing of the mandate. If the defendant’s appearance was
unreasonably delayed, then the speedy trial period begins to run from the date
the mandate is received.
Likewise, if the time for appearance by a defendant
for arraignment as provided by CrRLJ 3.3(c)(1) is
unreasonably delayed longer than the 15 days provided by the rule, then the
time for trial shall begin to run from the 15th day after the complaint is
filed.
In
this case, the Complaint was filed on
State v. Austin, (2003) 119
But “[t]he overall purpose of the
due diligence standard developed by the
Greenwood line of cases is to ensure
that the State takes those steps reasonably calculated to provide timely notice
of pending charges to a defendant.”
State
v. Vailencour, 81 Wn. App.
372, 377, 914 P. 2d 767 (1996) (emphasis added). Thus, if the State has information that may
lead to the defendant’s whereabouts,
Such as a return on arrest warrant indicating that
said defendant is in jail, and a notice of hearing informing the
Prosecutor’s
Office in which courtroom and when the defendant and his counsel will be
present, and the said counsel will ask for the defendant’s release, which would
free such defendant to appear for an arraignment.
to show due
diligence, it must take reasonable steps to follow up on that information or
show that doing so would be unreasonably burdensome. See
State v. Hunnel, 52 Wn.
App. 380, 386, 760 P. 2d 947 (1988) (“When the State sits idly by and does
nothing with the information available to it, it cannot claim that it made a
good faith effort to locate the defendant.”); see also
Jones, 79 Wn. App. at 13, (The
State did not act with due diligence because it “failed to diligently act upon
the information it had regarding [the defendant’s] whereabouts.”);
State v. Bazan,
79 Wn. App. 723, 730, 904 P. 2d 1167 (1995) (In
determining whether the State acted with due diligence, “the court considers
relevant factors, including whether the defendant was aware of the pending
charge and the amount and nature of the information known or readily available
to the State,”)
BECAUSE UNREASONABLE DELAY
IN EXCESS OF 105 DAYS CANNOT BE CURED UPON OBJECTION AT ARRAIGNMENT,
State v.
The
purpose of an objection to CrR 3.3(e) is to inform
the trial court of an alleged error in order to permit timely correction of
that error,
Bernhard, at 600. Where the time for trial calculation has
already expired, such an objection would not assist the court in setting a
trial within the requirements of CrR 3.3. In such cases, a defendant cannot be deemed
to have waived his or her objection. See
State v. Nelson, 47 Wn. App. 579, 586, 736 P.2d 686, review denied, 108 Wn. 2d 1024
(1987). Because Weyland
was not brought before the court until after the time for trial period had
elapsed, he cannot be deemed to have waived his objection.
The 125-day delay that occurred in
this case prior to the defendant’s arraignment was unduly long. The State failed to act in good faith and
with due diligence in bringing Weyland before the
court for arraignment, and the delay was not caused by any fault or connivance
on Weyland’s part.
Striker therefore applies to
this case and requires the establishment of a constructive arraignment date of
14 days after the information was filed, or October 1. Weyland not brought
to trial within 90 days of this date.
A criminal charge not brought to
trial within CrR 3.3’s requirements shall be
dismissed with prejudice. CrR 3.3(i). We
therefore reverse the Court of Appeals, and we reinstate the
trial court’s
ruling dismissing the charge against Weyland with
prejudice.
Bernhard is
State v. Bernhard, (1986) 45
90
days after the constructive arraignment date of
PROPOSED
ORDER
A copy of the proposed Order is provided hereto.
Respectfully submitted this 1st day of June, 2004.
__________________________
Roger W. Knight, pro se
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