State v. SulgroveState v. Sulgrove
- Reporters:
- , , ,
- Before:
- Swanson
The State appeals a dismissal of criminal charges ordered by the trial court pursuant to CrR 8.3(b), which states,
The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order.
The State argues the dismissal was outside the bounds of the above rule and thus an abuse of discretion. We disagree, and affirm the dismissal.
From the memorandum and order of dismissal, we cull the following pertinent facts. Barry R. Sulgrove, convicted of robbery and serving a 20-year maximum sentence, was charged by information with the crime of escape. 1 The case was set for trial on October 14, 1976, but was not called until October 20, 1976, due to the trial schedules of counsel and the congested court calendar. The expiration date under CrR 3.3, the 90-day speedy trial rule, was October 21, 1976.
Following the empaneling of a jury, Sulgrove moved for dismissal, contending he was improperly charged under
The next morning the court learned that the only evidence produced by the State to prove the conditions of Sulgrove's custody was an inadmissible copy of the work release plan. In response to objections thereto, the State indicated it would request another 1-day continuance to obtain admissible documentation.
At this point, the trial court dismissed the case under CrR 8.3(b) for the following reasons:
The Court initially concludes that the expiration date under CrR 3.3 fell on October 21, 1976, on which date the State was not prepared to proceed with its presentation of its evidence. Moreover, this state of unpreparedness was due to the failure of the Prosecuting Attorney to charge the alleged offense properly, a matter corrected only in response to a defense motion and after the jury was empanelled, and to the failure of the Prosecuting Attorney to marshall admissible evidence in support of the proper charge in a timely fashion. The immediate effect of these failures was to delay the defendant, the court, and the jury for the first afternoon of trial, and, then, an additional day before the trial could proceed further, which, of course, conflicted with the spirit of the speedy trial rule, CrR 3.3.
The court also noted the adverse effect of "such unpreparedness" on civil matters in a court whose docket is "congested by criminal cases," and the fact that Sulgrove still faced possible punishment under the jurisdiction of the Department of Corrections.
On appeal, the State argues that the discretionary dismissal of CrR 8.3(b) has been restricted by the decision in
State v. Starrish,
Thus, if there is evidence of arbitrary action or governmental misconduct we will not reverse the decision of the trial court absent an abuse of discretion.
State v. Burri,
The State contends the trial judge based his dismissal on grounds outside the perimeters of arbitrary action or governmental misconduct, namely, the crowded conditions of the court docket. This ignores the reasoning set forth in the court's written order (mandated by CrR 8.3(b)), as quoted above, which emphasizes the prosecutor's failure to "charge the alleged offense properly" and "mar-shall admissible evidence." The court properly concluded that such unpreparedness "conflicted with the spirit of the speedy trial rule, CrR 3.3."
See also State v. Sonneland,
The conduct of the State herein was sufficiently careless to be deemed misconduct and a ground for dismissal "in the furtherance of justice." We note parenthetically that had the trial court not dismissed the prosecution under CrR 8.3(b), but simply allowed the trial to proceed and denied any request for a continuance (as would have been well within its discretion, having already granted one continuance), the State would have failed for a lack of evidence.
Notes