*1 motion properly granted respondent's The trial court claim, viola appellant's to dismiss third which asserted a 19.86.020.) (RCW of the Consumer Protection Act. tion Act, specifically Protection and more the "unfair Consumer of the act deal deceptive practices" portion solely acts or sale with consumer transactions which there an actual seller, buyer, a and the involving or services goods MacDonald, v. Lightfoot 331, or services. goods Management Johnston (1976); Beneficial America, (1975); 637, Corp. 538 P.2d cf. Oldsmohile, Inc., Testo v. Russ Dunmire (1976). The with the appellant's dealings court's dis insurance involved neither. The trial company proper. was appellant's missal of third claim affirmed. Judgment JJ., concur. McInturff,
Green July denied rehearing Petition 2275-3. Division Three. June 1977.] [No. Respondent, Washington, v. Thomas J. State Jr., Appellant. Barton, *2 Ryals Critchlow, Williams, & Edward B. Critchlow appellant. Schuster, for Ludwig, Prosecuting Attorney, respondent.
Curtis L. Discretionary reviewgranted by was J. Green, question: Commissioner to consider one jury because a can- When a mistrial has been declared verdict, 3.3 run not reach a do the time limits CrR anew ond trial? of the mistrial to the date of the sec- from the date charged second-degree Defendant was with murder as a shooting pre- August 21, result of a liminary appearance on 1976. He entered a August 23,
on and was released on bail. Trial commenced November 1 and on November jury mistrial was declared reach because the was unable to a verdict. The Court Administrator scheduled the case for February retrial on after the mistrial was 3.3(b) February upon 4, defendant, declared. On based CrR charge moved to dismiss the for the reason that he had days. within 90 motion denied. On been retried This was review, the defendant does not claim that his constitutional right any way trial was denied or that he was prejudiced; only alleges conferred he a denial by CrR 3.3. We affirm the trial court's denial of the motion and remand for trial. reading
It is clear from a of CrR 3.3 that it does not directly inferentially following mistri or even cover retrials pertinent part, provides: In als. CrR 3.3 (b) charge brought Time A be Limit. criminal shall days following preliminary to trial within appearance. Prejudice. A
(g) criminal Dismissal With dis- required by this rule shall be to trial as brought prejudice. missed with
(Italics ours.) was to trial "brought Since the defendant he preliminary appearance", days following within 90 of the rule. cannot claim a violation contends Notwithstanding, Striker, 873-74, P.2d 847 ABA Standards adopt that we requires 1968), which, Draft, others, 90-day provision applicable declares among Therefore, argues mistrials.1 following retrials disagree. be dismissed. We the action should relies, upon which defendant language as follows: indicated that
A of this court has twice majority hiatus where a should be consulted in CrR 3.3. appears *3 Elizondo, cases While those [State Parmele, (1975); and
849 rule-making that delegate to Striker intended believe that Moreover, in court. court to this superior power the in contrast and adoption, the creation our view by not be accomplished new rules should interpretation, of ad hoc decision.2 judicial mistrials, the retrials after
CrR 3.3 does not cover area of trials, following appeal. new for new an or remands trials mat- us, that allow as a nothing There is in CrR 3.3 would 2.2(c) of ter to utilize the stand- interpretation, of the ards in issue this court. To resolving apply the before a require adopt in this would us to them as case noted, new does previously rule. As this court not have power, Even if we the we would rule-making power.3 had such a rule so as to cause a dismissal apply retroactively prej- of where no charge against the this defendant there is him his udice to and no contention that constitutional been right applica- trial has denied. Retroactive clearly tion of such a in these rule circumstances would law public's thwart interest effective enforcement orderly with of interfere administration justice. for trial. Remanded
Munson, C.J., concurs.
McInturff, (dissenting inception J. part)—From P.2d our Williams, Wn.2d 225 limits in relation strictly courts have construed the of no trial. know dissent, Bepple, 2 State v. in the Wn. cited only adoption rule-making a new rule. case does involve nor the That proposition requiring within 3.08 a trial stands for the that JCrR special appearance challenging by appearance triggered his defendant's is not Hence, rule; jurisdiction. recognized creating was not a new court Moreover, operative JCrR until the remand. 3.08 did not become after *4 Bepple never had a trial. defendant 3 Adoption in the course of of section of the standards normal rule-making process the under Court's would not be inconsistent with lying 3.3(b). philosophy of CrR deviation from general philosophy. dissent for three reasons.
First, there is no provision 3.3, under CrR absent (d) excluded time periods under (e), subsections for the trial of a defendant occur within period of more than 90 days. The lack of a specific rule relating to mistrials does not prevent reasoning that, obvious conclusion absent justification rule, under the there must be a retrial within 90 days following a mistrial. This stems from the consistently strict construction of the speedy trial rules and Williams, State principles in such cases supra at 32: A showing prejudice is unnecessary. . . .
The purpose of the rule is to insure speedy justice in cases, criminal insofar as reasonably possible. Striker,
and Wn.2d
udiced by Nevertheless, the delay. past experience has shown that unless a strict rule is applied, speedy trial as well as the integrity of the judicial pro- cess, cannot be effectively preserved. Williams,
Secondly, since
our Supreme
repeatedly
Court
has referred to
guidance
on issues
not covered specifically by the rules or statute.5
Although
could be said that
the explicit
notice in
that resort
should
standards,
be had to ABA
came only
a month
to the end of the 90-day period
case,
in this
certainly the
prior cases
adequate
were
notice
standards,
which
Goldthorpe,
4 See State v.
review
denied,
(1977).
851 mistrials,6 specifically contemplate should be used for guidance. Bepple, in State v. our court
Thirdly,
which
(1975), reached the conclusion
493,
Upon remand [from requiring again operative, became [Dis- trial the date it him of try trict to within Court] regained jurisdiction. after running again trial time clock
There we set I not a mistrial. do a remand as would do here after in to sim- my engage the reluctance of brothers understand unani- in we áccomplished ilar here of what reasoning light a trial Bepple. requiring in There was no rule there mously remand, is no rule here to days of as there just within 60 a mistrial. We days following mandate a retrial within 90 then nor need we do guidelines did not resort Parmele, 139,142, said: In State v. P.2d 536 the court triggers appearance justice pursuant the time in to JCrR 2.03 An court 3.3(b). case, although the court did not In the Elizondo ... limits of CrR 3.3, approved implicit concept is in CrR the "held to answer" decide whether by concept recognized in its Standards the American Bar Association (1968)). commentary (Approved Relating Speedy Draft No. to being filing a defendant if at the time of of a criminal indicates that recogni custody personal or in or released on bail "held to answer"—whether crime, date the to run from the zance—for a then the time for trial commences Accord, Elizondo, supra. defendant was held to answer. 870, 873-74, Finally, the court in said: should majority that the ABA standards A court has twice indicated this appears in CrR 3.3. where a hiatus be consulted here, they question presented dispose those cases do not While guidance where a situa- point this court should consult to a source which for by by contemplated and not covered the rules arises which was tion harmony with the rules. statute which is in bringing a case to that the The ABA standards indicate information, where it is filing the indictment trial should date bring to arrest, they the matter provide that to but also to failure filed discharge. ABA absolute should result within the time limited trial 1968). latter Draft, This Trial 4.1 Standards § 3.3(b)). (CrR by expressly adopted this court standard has been omitted.) (Italics ours. Footnote 6 Seefootnote
so now even though both situations are aptly by covered of the standards.
I therefore cannot reason to other any conclusion that a retrial, mistrial, after a must occur within a maximum period of 90 It is days. inconceivable to me awhy longer time span is necessary. prosecution and the defense are prepared enough to have already engaged one attempt resolve the He, charges against defendant. having endured the anxiety public suspicion attendant *6 being charged, exposed twice more to the mental anguish of, first, and, then, a trial without delay a verdict another Furthermore, to the second trial. in a mistrial there must enough have been reasonable doubt the defend- ant prevent committed the crime to a 12-man jury resolving question And, course, of his guilt. interests of the public speedy disposition of criminal charges have not been served under our rules.7
Regardless of the wisdom of a quantitative trial rule, our Supreme Court has strictly enforced CrR 3.3 and has directed us for guidance to the ABA standards. Under I it, law as construe am constrained to hold the defendant dismissed; should be but I would not apply this decision retroactively. July 13,
Reconsideration denied 1977. Review granted by Supreme Court December countervailing 7 For a discussion of the considerations involved in trial Wingo, questions, Barker v. 514, 532-33, see 407 U.S. 33 L. Ed. 2d 92 S. Ct. pages standards at 10-11.