                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         March 14, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 48428-5-II

                                Appellant,

        v.

 ANDREW PHILLIP LINGLE,                                       UNPUBLISHED OPINION

                                Respondent.


       LEE, J. – The State of Washington appeals the trial court’s order dismissing second degree

assault and third degree assault charges against Andrew Phillip Lingle based on a violation of his

CrR 3.3 time for trial right. Because the plain language of the time for trial rules resets the time

that Lingle was to be brought to trial, we reverse the dismissal and remand.

                                                FACTS

       On July 28, 2015, the State charged Lingle with two counts of second degree assault,

harassment, fourth degree assault, and interfering with reporting domestic violence. The State

amended the information on September 18, 2015 to add an additional second degree assault count.

This additional charge was listed as count 1.

       Lingle signed a waiver of speedy trial on September 18, 2015. The waiver states,

“Defendant WAIVES HIS RIGHT to such speedy trial within 60-90 day time frame and consents

to a trial date by December 17, 2015.” Suppl. Clerk’s Papers (CP) at 14. There was no

commencement date on the waiver specifying when the time for trial began. Lingle was out of

custody while awaiting trial.
No. 48428-5-II


       The trial court severed count 1 from the other counts. At a pretrial hearing on December

4, 2015, the parties discussed trial dates for the remaining counts and the severed count. During

this discussion, the parties noted that Lingle’s time for trial deadline on counts 2 through 7 was

December 17, 2015, and that on count 1 they would “deal with the Speedy Trial issue and any cure

period” at a later time. Report of Proceedings (RP) (Dec. 4, 2015) at 5-6. The trial court set

December 14, 2015 as the trial date for counts 2 through 7.

       On December 16, 2015, a jury found Lingle not guilty on counts 2 through 7. On December

17, the State filed an information under a separate cause number, charging Lingle with the severed

count of second degree assault and adding one count of third degree assault. Lingle filed a motion

to dismiss based on a violation of his speedy trial rights. During the January 8, 2016 hearing on

the motion, the trial court noted, “I appreciated the State’s brief . . . explaining the constitutional

nuances and so forth of the right to a Speedy Trial under the state and federal constitution, but

that’s not the issue that we’re dealing with here. The issue we’re dealing with here is a court rule.”

RP (Jan. 8, 2016) at 24. The trial court went on to note that there was no commencement date on

the waiver. The trial court used the date the waiver was “executed” as the commencement date

and concluded that Lingle’s time for trial expired on December 17, 2015, as listed on the waiver.

RP (Jan. 8, 2016) at 24. The trial court dismissed the information with prejudice. The State

appeals.




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No. 48428-5-II


                                            ANALYSIS

A.     TIME FOR TRIAL

       The State contends the trial court erred by dismissing the charges against Lingle based on

a time for trial violation. The State argues the lack of a commencement date on Lingle’s waiver

required the trial court to use the trial date, not the date Lingle signed the waiver. We agree.

       We review de novo application of the CrR 3.3 time for trial rules. State v. Nelson, 131 Wn.

App. 108, 113, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006). We interpret court rules

as if they were statutes. State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007). In interpreting

a statute, we look first to the statute’s plain language. State v. Keller, 143 Wn.2d 267, 276, 19

P.3d 1030 (2001), cert. denied, 534 U.S. 1130 (2002).           If the statute’s plain language is

unambiguous, our inquiry is at an end, and we enforce the statute “in accordance with its plain

meaning.” State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       CrR 3.3 sets forth a criminal defendant’s time for trial. Out of custody defendants generally

must be brought to trial within 90 days after arraignment. CrR 3.3(b)(2)(i). The arraignment is

the commencement date of a defendant’s time for trial. CrR 3.3(c)(1). A defendant, however,

may waive the time for trial. CrR 3.3(c)(2)(i). Filing a written waiver of the time for trial right

resets the commencement date and the elapsed time is reset to zero. CrR 3.3(c)(2)(i). The new

commencement date is the date specified in the waiver, but cannot be earlier than the filing date

of the waiver. CrR 3.3(c)(2)(i). If no date is specified in the waiver, “the commencement date




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No. 48428-5-II


shall be the date of the trial contemporaneously or subsequently set by the court.” CrR 3.3(c)(2)(i)

(emphasis added).1

       The plain language of CrR 3.3(c)(2)(i) states that the commencement date of the speedy

trial time, following a waiver, is the date specified in the waiver or, if there is no such date, “the

date of the trial contemporaneously or subsequently set by the court.” CrR 3.3(c)(2)(i). Here, the

parties agree there is no specified commencement date. The trial court subsequently set the trial

date as December 14, 2015. Under CrR 3.3(c)(2)(i), the State had 90 days from December 14,

2015 to bring Lingle to trial.

       Relying on State v. Nelson, 131 Wn. App. 108, 114, 125 P.3d 1008 (2006), Lingle argues

the commencement date is the date his waiver was filed. In Nelson, Nelson appealed his first

degree assault conviction, arguing the court violated his right to a timely trial. Nelson had signed

two waivers. The second waiver was filed on January 30, 2004 with a trial date of March 22, 2004.

Id. at 112. Nelson’s trial began on March 30. Nelson argued on appeal that the March 22 trial

date was the end of his time for trial period. Division Three held that Nelson’s time for trial period

did not end until March 30, which was 60 days after Nelson filed his waiver. The court held that




1
  Prior to the amendment of CrR 3.3 in September 2003, courts repeatedly held that if the waiver
has no express expiration date or set period of days, it was effective to the date of the trial
contemporaneously or subsequently set by the trial court. State v. Hamilton, 121 Wn. App. 633,
640, 90 P.3d 69 (2004); State v. Bartlett, 56 Wn. App. 77, 79, 782 P.2d 570 (1989); State v.
Pomeroy, 18 Wn. App. 837, 842, 573 P.2d 805 (1977). Amendments to the time for trial rules in
2003, however, expressly preclude employing constructive commencement dates that are not
provided by the plain language of the rule. See State v. Olmos, 129 Wn. App. 750, 756, 120 P.3d
139 (2005) (amendments to rules superseded the constructive arraignment principles).
Accordingly, we rely on CrR 3.3(c)’s plain language for determining the time for trial
commencement date. The current version of CrR 3.3(c)(2)(i) does not address expiration dates;
rather, it addresses the “commencement date.”


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No. 48428-5-II


CrR 3.3(c)(2)(i), “fixes [the time of trial] ‘commencement date’ as the date the waiver is filed”

and that Nelson had 60 days from that date to be tried. Nelson, 131 Wn. App. at 113-14. It is

unclear in Nelson whether Nelson’s waiver contained a commencement date. The court only noted

that the waiver “did not specify a commencement date earlier than the date of filing.” Id.

        Unlike Nelson, here, there is no commencement date on Lingle’s waiver. And CrR

3.3(c)(2)(i) clearly states, if no commencement date is specified on the waiver, “the

commencement date shall be the date of the trial contemporaneously or subsequently set by the

court.” CrR 3.3(c)(2)(i).    Therefore, Lingle’s time for trial commencement date would be

December 14, 2015, the trial date subsequently set by the court. We hold the trial court erred in

dismissing the charges against Lingle on January 8, 2016 because the speedy trial time had not yet

run.2

B.      EQUITABLE ESTOPPEL

        Lingle responds that the State is equitably estopped from raising this argument. We reject

this assertion, particularly where the State has clearly preserved its claim of error by objecting

below to the dismissal of the charges.

        Equitable estoppel requires a statement inconsistent with the claim later asserted, action by

the other party in reliance on that statement, and an injury to that other party resulting from

allowing the first party to repudiate that statement. State v. Yates, 161 Wn.2d 714, 737-38, 168




2
 Based on our holding, we decline to address the State’s additional argument that Lingle’s
constitutional speedy trial time had not run. See City of Seattle v. Williams, 128 Wn.2d 341, 347,
908 P.2d 359 (1995) (appellate court should decline to reach constitutional issues when they are
not necessary to resolve the case).



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No. 48428-5-II


P.3d 359 (2007), cert. denied, 554 U.S. 992 (2008). The application of equitable estoppel against

the government is disfavored, and we are unpersuaded that it applies here. In re Estate of

Hambleton, 181 Wn.2d 802, 834, 335 P.3d 398 (2014), cert. denied, 136 S. Ct. 318 (2015); see

Yates, 161 Wn.2d at 738 (declining to apply equitable estoppel after observing that no Washington

case has extended it to criminal prosecutions).

        We reverse and remand for further proceedings.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                                       Lee, J.
 We concur:



                    Bjorgen, C.J.




                    Melnick, J.




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