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                                                                                              COURT
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT-
                                                                                               M kA
                                        DIVISION II
                                                                                              Yi_
STATE OF WASHINGTON,                                                  No. 41802 9 II
                                                                                - -


                              Respondent,                       UNPUBLISHED OPINION

       MM




JEFFREY S. ASHBORN,

                              Appellant.



       BJORGEN J.Jeffrey Scott Ashborn appeals his convictions on two counts of fourth
                  —

degree assault, one count of interfering with the reporting of domestic violence, one count of

unlawful possession of a controlled substance, marijuana, and one count of third degree driving

with license suspended. He alleges that the trial court erred by denying his motion to dismiss for

violation of the " peedy trial"rule, CrR 3. . He argues that his trial did not commence on the
                 s                        3

date it was set, even though the court called the case and heard a motion to exclude witnesses,

because the court set the trial date knowing that no jurors would available that date. Because

Ashborn's trial resumed within the speedy trial period required by CrR 3. ,we hold that there
                                                                        3

was no speedy trial violation. Accordingly, we affirm.

                                              FACTS


       On April 13, 2010, the State charged Ashborn with second degree assault, felony

harassment, and interfering with the reporting of domestic violence based on an incident that

occurred on April 12, 2010. On July 21, 2010, the State moved to dismiss the April charges

because the victim could not be located and   subpoenaed   to   trial; and without her   presence, the
No. 41802 9 II
          - -



State did not believe it could prove the charges beyond a reasonable doubt. The trial court

dismissed the charges without prejudice on July 21, 2010.

          On October 11, 2010, the State charged Ashborn with second degree assault ( ount I);
                                                                                    c

unlawful possession of a controlled substance, 40 grams or less of marijuana ( ount II);
                                                                             c        unlawful

use of drug paraphernalia (count III); third degree driving while license suspended (count
                                     and

IV),
   based on events occurring on October 8,2010. Trial was set for December 2,2010. On

November 16, 2010, the trial court granted defense counsel's motion to continue the trial to

January 20, 2011.

          On December 2,2010, the State filed charges arising from the April incident.' Counsel

agreed to amend the existing information to add the previously dismissed charges to the pending

case   rather than file them under their   original   cause   number.

          On December 10, 2010, Ashborn's counsel objected to the January 20, 2011 trial date,

arguing that it was outside the speedy trial period with respect to the charges relating to the April

incident that were added to the charges arising from the October incident. Defense counsel

argued that the charges relating to the April -
                                              incident had only 24 days of speedy time
                                                           -




    The State had contact with the victim from the April incident because she was also the victim in
the October incident.

2
    The amended information included the following charges relating to the April incident: second
degree assault (count V),
                        felony harassment (count VI), interfering with the reporting of
                                                    and
domestic violence (
                  count VII).

    Ashborn concedes that the trial date of January 20,2011, was within the speedy trial period for
the charges arising from the October incident ( ounts I IV,VIII).
                                              c         -       Therefore, Ashborn's speedy
trial argument is limited to counts V VII. Of those counts, Ashborn was convicted only on the
                                      -
charges of fourth degree assault ( ount V)and interfering with the reporting of domestic violence
                                  c
count VII).

                                                        2
No. 41802 9 II
          - -



remaining when they were dismissed without prejudice on July 21, 2010,and thus, trial on those

counts had to commence no later than December 26, 2010. Responding to this argument, the

trial court moved the trial date forward to December 22, 2010. The trial court acknowledged that

no jurors would be available on that date,but it planned to call the case for trial,address

preliminary motions, and then recess until Monday, January 3,2011.

         As scheduled, the trial court called the case for trial on December 22,2010, and granted

defense counsel's motion to exclude testifying witnesses from the courtroom. The State filed a

second amended information that added a count of felony harassment (
                                                                   count VIII)arising from

the October 2010 incident. The trial court arraigned Ashborn on the second amended

information and accepted his not guilty plea. Then the trial court recessed the trial until January

3, 2011.

         On January 3,2011,the trial court conducted a CrR 3. hearing and heard defense
                                                            5

counsel's motion to dismiss the charges related to the April incident for violation of the speedy

trial rule. Defense counsel argued that the proceeding on December 22, 2010,was not effective

to toll the speedytrial time the court knew when itscheduled the trial for that date that

no jurors would be available and because the motion to exclude witnesses considered by the

court was merely a pro forma motion. According to defense counsel, Ashborn's speedy trial




4
    The record on appeal does not contain the documents that would allow us to calculate this
number, but both parties and the trial court refer to an order indicating that there were 24 days
left in the speedy trial period when the charges were dismissed on July 21, 2010.

5 Due to budget constraints, Pierce County did not have new jurors available for superior court
cases the weeks of July 4,August 8,November 21,December 20, and December 26.
                                                  3
No. 41802 9 II
          - -



rights expired on January 1, 2011. The trial court denied the motion to dismiss and ruled that
the trial commenced on December 22, 2010, when Ashborn was arraigned on the second

amended information and the court granted a defense motion to exclude witnesses.

       Also on January 3,2011, the State filed a third amended information that added a deadly

weapon enhancement to the felony harassment charge (count V)arising from the October 2010

incident. The defense objected, but the trial court allowed the third amended information,

arraigned Ashborn, and accepted his not guilty plea.

       Jury selection commenced on January 4,2011, followed by opening statements and

presentation of evidence on January 5,2011. The jury returned verdicts finding Ashborn guilty

of unlawful possession of a controlled substance, marijuana ( ount II), degree driving while
                                                            c        third

license suspended (count IV),
                            interfering with the reporting of domestic violence (count VII),

and two counts of the lesser included crime of fourth degree assault ( ounts I and V). jury
                                                                     c               The

acquitted Ashborn of unlawful use of drug paraphernalia ( ount III)and felony harassment
                                                        c

count VIII). trial court sentenced Ashborn to 365 days confinement for counts I and V,and
           The

90 days for counts III IV,and VIII. The trial court suspended a portion of each sentence and - - - -

imposed various conditions on the suspended sentence.


6
  Defense counsel had earlier argued in a motion objecting to the trial setting that speedy trial
time expired on December 26, 2010. On January 3,2011, she corrected her earlier calculation,
stating:
       I had mistakenly [written] in that motion ... that speedy trial would expire on
       December 26th because I was using the remainder of speedy trial time left as of
       July 21 st, which would have been 24 days. But actually looking up the law under
       CrR 3. ,the state would have 30 days once it was refiled. So giving the state 30
              3
       days from December 2nd would mean that Mr.Ashborn's speedy trial rights
       would expire on January 1 st.
Report of Proceedings at 30 31.
                            -


                                                 M
No. 41802 9 II
          - -



       Ashborn timely appeals.

                                          ANALYSIS


       Ashborn argues that his convictions should be dismissed with prejudice because the State

violated his speedy trial rights when the trial commenced on December 22, 2010 and was

continued to January 3,2011. We disagree.

       Determining whether a violation of the speedy trial rule requiring dismissal occurred is a

question of law,which we review de novo. State v. Carlyle, 84 Wn. App. 33, 35 36,925 P. d
                                                                              -       2

635 (1996).A criminal trial not brought to trial within the time limits of CrR] 3. shall be
           "                                                               [     3

dismissed with prejudice."Carlyle, 84 Wn.App. at 35. " defendant is `brought to trial' for
                                                     A

purposes of speedy trial]when the judge calls the case and hears preliminary motions."Carlyle,
            [

84 Wn. App. at 36 (citing State v. Carson, 128 Wn. d 805, 820, 912 P. d 1016 (1996)).
                                                 2                  2

       A defendant detained in jail must be brought to trial within 60 days of arraignment or

within the time specified in CrR 3. (
                                 b)(whichever is longer. CrR 3. ( Under CrR
                                  5),
                                  3                          b), (
                                                              3 c).

b)(i] "[
3. ( f any period of time is excluded pursuant to section (e), allowable time for trial
 5),
 3                                                          the

shall not expire earlier than 30 days the end of that excluded p -
            p                     Y                            period."CrR 3. ( -
                                                                           e)(
                                                                            4)
                                                                            3

provides that "[ he time between the dismissal of a charge and the refiling of the same or related
              t]

charge"shall be excluded in computing the time for trial.
       Time shall be   computed ... in accordance with CR 6." 8. . Civil Rule 6( )
                                                            CrR 1              a

provides:

       Incomputing any period of time[,] ... day of the act, event, or default from
                                              the
       which the designated period of time begins to run shall not be included. The last
       day of the period so computed shall be included, unless it is a Saturday, a Sunday
       or a legal holiday, in which event the period runs until the end of the next day
       which is neither a Saturday, a Sunday nor a legal holiday.


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No. 41802 9 II
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         Ashborn argues that his right to a speedy trial was violated because (1) jury trial was
                                                                                his

set for a date that the trial court knew would not have jurors available, and (2) trial court's
                                                                                 the

hearing a motion to exclude witnesses was a pro forma motion insufficient to toll the running of

the speedy trial period. As noted, his counsel argued at trial that the time for commencing the

trial expired on January 1, 2011. We agree, since January 1, 2011, was the 30th day following

refiling the charges arising from the April incident.

         Because the last day of the speedy trial period was Saturday, January 1, 2011, the speedy

trial period was extended to the end of the next day which was not a Saturday, Sunday, or a legal

holiday. See CR 6. Thus, Ashborn's speedy trial period expired Monday, January 3,2011.

Even if Ashborn's trial did not commence on December 22, 2011, it most certainly commenced

by January 3,2011, when the trial court heard the parties' remaining preliminary motions,

allowed filing of the third amended information, arraigned Ashborn and accepted his not guilty

plea, and conducted a CrR 3. hearing. See Carlyle, 84 Wn. App. at 36 37;see also Carson, 128
                           5                                         -

Wn. d at 820. Thus Ashborn's arguments fail. We need not reach his argument about whether
  2

his trial -
          actually commenced on December 22,2010, and we decline to do so.




7
    Those charges were refiled on December 2,2010, as counts V VII of the amended information.
                                                               -
Because the period between dismissal (July 21,20 10)and refiling the charges (December 2,
2010)is an excluded period under CrR 3. ( time for trial is increased from 24 to 30 days.
                                       e),
                                         3 the
See CrR 3. (
        b)( Thirty days from December 2, 2010, was Saturday, January 1, 2011 (January
             5).
             3
3, 2011, was a Monday).


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No. 41802 9 II
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       We hold that Ashborn's trial commenced within the speedy trial period required by CrR

3. . Accordingly, we affirm.
 3

       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

040,
2.6.it is so ordered.
  0

                                                       el




                                                            J.
We concur:                                        ByRGyr,




                                              7
