                                                                                                          FILED
                                                                                                      R 0T OF APPEALS


                                                                                                     20130E     0     Ai   8:   5

                                                                                                     S1               SH1l'4G' 0,

                                                                                                      P61
                                                                                                              DF-PU




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

STATE OF WASHINGTON,                                                               No. 42707 -9 -II


                                        Respondent,


        AIM

                                                                                  Consolidated with
JEFFREY S. MOORE,




STATE OF WASHINGTON,                                                               No. 42715 -0 -II


                                        Respondent,


       V.



MARIO GADEA- RIVAS,                                                            PUBLISHED OPINION




        HUNT, J. —            Jeffrey    S.      Moore and Mario Gadea -
                                                                       Rivas appeal the superior court' s


affirmance of the district court' s denial of their motions to dismiss their driving under the

influence ( DUI)       charges     for failure to comply      with   CrRLJ 3. 3 time for trial     rules.   Both argue


that the superior court erred in ruling ( 1) that the district court' s failure to set a timely trial date

was cured under         CrRLJ 3. 3(    a)( 4);   and ( 2) that Moore' s failure to appear at motion hearings reset

                                                                                        1
the time      within   he   must   have been brought to trial     under   CrRLJ 3. 3.       Holding that failure to set


1 Moore also assigns error to the superior court' s ruling that his attorney had an ethical duty to
notify him      of court    hearings    under     the Washington Rules    of   Professional Conduct.
Consolidated Nos. 42707 -9 -II and 42715 -0 -11



trial within the time limits of CrRLJ 3. 3 requires dismissal, we reverse the superior court and

remand to the district court to dismiss these charges with prejudice.

                                                     FACTS


        Both Jeffrey S. Moore and Mario Gadea -Rivas were arrested for driving under the

influence   of alcohol   in 2009,   a violation of   former RCW 46. 61. 502 ( 2008).   Moore submitted to


a breathalyzer test.2

                                             1.   DISTRICT COURT


                                                     A. Moore


        Moore, who was out of custody, was arraigned in district court on May 11, 2009; the

court scheduled a pretrial     hearing for   June 11.     The next few months involved several pretrial


hearing reschedulings and Moore' s multiple waivers of his time for trial rights under CrRLJ 3. 3.

On July 2, 2009, Moore filed his first waiver of his time for trial rights, effective through

December 1, 2009; at the October 6 pretrial hearing, the district court set his trial for November

30 but later cancelled it without setting a new trial date. Thus, when Moore filed his last time for

trial waiver at the May 24, 2010 pretrial hearing, the district court had not set a trial date.

        Docket entries reflect that Moore was present with his attorney for some, but not all, of

the numerous hearings and scheduling conferences leading up to this May 24 pretrial hearing.

The State   never objected    to Moore'    s absence    from hearings he did   not attend.   And the district




2 The record before us does not specifically reflect that Gadea -Rivas also submitted to a
breathalyzer test. Nevertheless, we infer from his motion to suppress that this was the case. This
fact, however, is not relevant to the time for trial issues in the instant appeal.




                                                         2
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



court neither issued any bench warrants for Moore' s " failure to appear" nor otherwise required

his presence.


         On May 14, ten days before his May 24 pretrial hearing, Moore filed a second motion to

suppress —part of          the joint " Vosk     Uncertainty       Motion" (      Vosk Motion) to suppress brought by

approximately 114 defendants               and multiple        defense     attorneys.   Clerk'   s   Papers ( CP) ( Moore) at


43.    Moore and his counsel were present for the May 24 pretrial hearing, at which the district

court scheduled the Vosk Motion hearing ( including Moore' s second motion to suppress) for

June 25.    Also on May 24, Moore filed his fourth and final time for trial waiver, resetting his

commencement           date to June         1   and    his    expiration     date 90 days later,          on September 1. 3

Apparently expecting that the Vosk Motion would be resolved before this September 1

expiration date, the district court did not set a new trial date for Moore.

          On June 2, 2010, the district court accepted Moore' s waiver of his right to appear at the.


Vosk Motion         hearing. The court' s docket reflects that Moore was not present at any additional

hearings    until    his    February   17, 2011       pretrial    hearing.       Again, the record includes no orders


requiring Moore' s presence at these interim hearings or any bench warrants for his failures to

appear.    Instead, the district court sent notices of continued Vosk Motion hearing dates to only



3
 The record before us on appeal shows that Moore filed his last time for trial waiver on May 24,
2010, which reset his commencement date to June 1, 2010, and reset his 90 -day time for trial
expiration    date to September 1, 2010.                    We note, however, that other parts of the record are
unclear about       the    expiration of   Moore'     s    last time for trial   waiver: (   1) The court docket says that
Moore " WAIVES SPEEDY TRIAL TO SEPTEMBER 1, 2010," CP ( Moore)                                               at   10; ( 2) in his
district court motion to dismiss, Moore argued that he had " extended his speedy trial time limit
to December 10, 2010,"            CP ( Moore)         at   31; ( 3) in his Application for Writ of Prohibition to the
superior    court,    Moore      stated    that " he       waived       speedy trial through December 1,            2010,"   CP
    Moore) at 39; and ( 4) Moore' s counsel listed December 1 and December 10 deadlines in his
brief, the bases for which are not clear.



                                                                    3
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



the defense         attorneys, not    to the defendants themselves.                 Thus, the district court sent notice to


only the defense attorneys when it bifurcated the Vosk Motion hearing, set defense arguments

for June 25, and set the State' s arguments 40 days later.

           On June 15, the State moved to continue the Vosk Motion; the district court scheduled a


hearing      on     this   continuance   motion      for August 27.             Moore was not present at the August 27


hearing, at which ( 1) the district court granted the State' s request to continue the Vosk Motion

hearing      and set another status         hearing    in Moore'         s case   for September 24; ( 2) Moore' s counsel


did not object to resetting the status hearing beyond the September 1 time for trial expiration

date; ( 3) Moore did not again waive his time for trial; and ( 4) the district court did not reset


Moore' s trial date to commence before the existing September 1 expiration date.

           A month later, at Moore' s September 24 status hearing, the district court reset the Vosk

Motion           hearing    for November 5.          The record does not show that Moore' s defense counsel


objected to this hearing date, which was beyond the expiration of Moore' s last time for trial

expiration         date, September 1.       Again, Moore filed no additional time for trial waiver, and the


district     court    did   not set a new   trial   date. On October 27, the State again moved to continue the


Vosk Motion            hearing. At a November 3 teleconference hearing on this continuance motion,
                                                                                                                                  4,
Moore'       s    counsel    raised   general       concerns    about "         speedy trial"   rights   for   all   defendants


nevertheless, the district court granted the State' s requested continuance and set the Vosk Motion




4 Moore' s defense counsel declared that he had filed a written objection to Moore' s trial
continuance from November 5 to December 13, but only in the lead case on the Vosk Motion,
State   v.       Gunderson, 8Y6054725. See CP            at    45,   n.   1.   The record does not show that Moore filed a
separate objection in his case.



                                                                     V
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



hearing for    December 13,          again without      setting    a new   trial   date for Moore.. CP ( Moore) at 45.


Neither Moore, nor his counsel, was present for the December 13 Vosk Motion hearing.

         On January 20, 2011, the district court denied the Vosk Motion as to all the defendants.

The   next   day,     it issued   a notice      setting Moore'    s pretrial   hearing for February 17.        Both Moore


and his counsel appeared at this February 17 pretrial hearing, at which Moore ( 1) orally moved
                                                                                      5;
to dismiss the DUI         charge    because his time for trial had        expired         and ( 2) objected to setting trial

dates   outside     the existing time for trial deadlines.               The next month, at a March 29 pretrial


hearing, Moore filed a written motion to dismiss for failure to bring him to trial within the time

for trial rules.


         On April 1, the district court set an April 21 hearing on Moore' s motion to dismiss and

set a new     trial    date for May 18.          The district court granted the State' s motion to continue the


April 21 motion hearing until May 5; at the May 5 hearing, the district court denied Moore' s

motion to dismiss.


                                                   B. Mario Gadea -
                                                                  Rivas


         Mario Gadea -Rivas was arraigned, out of custody, in district court on December 2, 2009.

Over the      course of multiple pretrial           hearings, he      waived    his time for trial     several   times.   His


fourth and last waiver expired December 31, 2010.




5
    As promised, Moore followed up with a written motion, which stated that his time for trial had
expired on     December 1, December 10,               or   December 31, 2010.          These dates differ from Moore' s
waivers      in the    record     before   us   on appeal.    See Spindle ( Moore) (
                                                                    District Court Speedy Trial
Waivers) (reflecting that Moore' s first speedy trial waiver expired December 1, 2009, second
Waiver expired February 18, 2010, third waiver expired June 1, 2010, and fourth waiver expired
September 1, 2010).          See also n.3, supra.



                                                                  E
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



          On May 14, 2010, Gadea -Rivas filed a motion to suppress the results of his breathalyzer

test.    The district     court combined     his   motion   to   suppress with     the Vosk Motion.   Like Moore,


Gadea -Rivas       waived   his   presence   for the Vosk Motion hearings.          The district court set a hearing
                                                                                                6
on    the Vosk Motion for November 3, then                 rescheduled   it to December 13.         On January 20,

2011, the district court denied the Vosk Motion.


          At Gadea -Rivas' pretrial hearing on February 1, the district court set his trial for February

28.     On February 7, Gadea -Rivas filed a motion to dismiss his DUI charge because the trial date

violated    the CrRLJ 3. 3 time       for trial    rule.   At a February 22 hearing, the district court denied

Gadea- Rivas' motion.


                                                       II. APPEALS


          Both Moore and Gadea -Rivas appealed to superior court under the Rules for Appeal of


Decisions     of   Courts    of   Limited Jurisdiction ( RALJ).          The superior court consolidated their


appeals and denied them both.




6 Gadea -Rivas' counsel appeared at the December 13 hearing; but he did not object when the
district court announced it would issue its ruling on the Vosk Motion in January ( after Gadea-
Rivas' last time for trial waiver would expire).


7 The superior court also denied Moore' s and Gadea- Rivas' applications for writ of prohibition
and mandamus on two grounds:. ( 1) Any failure to comply with time for trial rules was cured

under CrRLJ 33( a)( 4),   which excuses delay when the trial was timely but " delayed by

circumstances not addressed" in CrRLJ 3. 3 or 4. 1, such as the large Vosk Motion; and ( 2) both
commencement dates reset when they failed to appear for the June 24, 2010 status hearing and
began     anew     only    when    they   appeared    for the     February   1,   2011 pretrial hearings, such that
Gadea- Rivas' trial date was timely.



                                                              0
Consolidated Nos. 42707 -9 -II and 42715 -0 -II




          Moore and Gadea - ivas separately sought discretionary review of the superior court' s
                          R

denial    of   their appeals.          Our court commissioner granted both motions for discretionary review
                                8
under    RAP 2. 3( d)( 3)           and consolidated them.


                                                                   ANALYSIS


          Moore and Gadea - ivas both argue that the superior court erred in ruling that ( 1) the
                          R

district court' s failure to set their trial dates within CrRLJ 3. 3' s time for trial rule was cured

under    CrRLJ 3. 3(      a)(   4);    and ( 2) their failure to appear at hearings after May 24, 2010, reset the

time   within which           they    must     be brought to trial.           Moore separately argues that the superior court

erred in ruling that, under the Washington Rules of Professional Conduct, his trial counsel had an

ethical   duty    to notify him           about court        hearings.            We agree with the first and second arguments;


because we reverse the superior court on these grounds, we do not reach Moore' s third argument.

                                                        I. STANDARDS OF REVIEW


          We     review a           district   court' s    decision according to the             standards   in RALJ 9. 1.       State v.


Ford, 110 Wn.2d 827, 829, 755 P. 2d 806 ( 1988).                                   We review the record before the district court;


we review        factual issues for            substantial evidence, and we review                   legal issues de   novo.     City of

Bellevue v. Jacke, 96 Wn. App. 209, 211, 978 P. 2d 1116 ( 1999).

           CrRLJ 3. 3 governs the time for trial in criminal cases in courts of limited jurisdiction. In


reviewing a time for trial ruling in a district court case, we may consider authority citing the

superior court time for trial rule, CrR 3. 3, because the CrR 3. 3 language is identical in all




8 Our commissioner granted discretionary review because " the paucity of decisions examining
the    breadth     of     a    defendant' s           waiver       of   his   presence     in   court, [ and]   the   superior    court' s

interpretation       of       CrRLJ 3. 3(       c)(   2)( ii)[,]   is an issue of public interest that this court should
address."       Spindle ( Moore) ( Ruling                 Granting Review and Consolidating Appeals at 5 -6).

                                                                              7
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



material respects            to CrRLJ 3. 3.           State v. Chhom, 162 Wn.2d 451, 460, 173 P. 3d 234 ( 2007)


 citing State      v.   Mack, 89 Wn.2d 788, 576 P. 2d 44 ( 1978)).                     A trial court' s application of the time


for trial   rule   to    a particular set of          facts is   a question of   law,   which we review      de     novo.   State v.


Chavez -Romero, 170 Wn.                      App.   568, 577, 285 P. 3d 195 ( 2012),        review denied, 176 Wn.2d 1023

 2013);     see    also      State      v.   Kindsvogel, 149 Wn.2d 477, 480, 69 P. 3d 870 ( 2003). "                    Failure to


strictly comply with CrR 3. 3 requires dismissal, whether or not the defendant can show

prejudice."        State     v.   Tolles, 174 Wn.        App.    819, 823, 301 P. 3d 60 ( 2013) (      citing State v. Raschka,

124 Wn. App. 103, 112, 100 P. 3d 339 ( 2004)).

            We treat a trial court' s unchallenged findings of fact on a CrR 3. 3 motion to dismiss as

verities    on appeal.            Tolles, 174 Wn.          App.     at   823.   We review for abuse of discretion a trial


court' s    denial      of   a motion to          dismiss for    violation of   the   applicable   time for trial   rule.   Chavez-


Romero, 170 Wn. App. at 577 ( citing City of Seattle v. Guay, 150 Wn.2d 288, 295, 76 P. 3d 231

 2003)).      We may affirm the trial court' s ruling on any grounds the record supports, including

those the trial         court     did   not   explicitly   articulate.     State v. Ginn, 128 Wn. App. 872, 884 n.9, -117

P. 3d 1155 ( 2005).


                                                           II. TIME FOR TRIAL


            CrRLJ 3. 3 establishes the time within which the State must bring a defendant to trial in

district    court.      Under CrRLJ 3. 3( b),           the State must bring a defendant to trial within 60 days of his

  commencement date" if he is detained in jail and within 90 days if he is not detained in jail.

CrRLJ 3. 3(       a)(   1) expressly         provides, "   It shall be the responsibility of the court to ensure a trial in

accordance         with      this    rule    to   each person     charged with        a crime."    And if "[a]      charge [   is]   not
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



brought to trial        within      the time    limit determined           under    this   rule,"      the court must dismiss it " with


prejudice."     CrRLJ 3. 3( h).


         Under CrRLJ 3. 3(             c)(   2)( ii), a defendant' s commencement date resets when he or she fails


to   appear "   for any proceeding                at   which         the   defendant'      s       presence   was          required.     The new


commencement                date   shall     be the date       of     the defendant'           s    next   appearance."             CrRLJ 3. 4( a)


requires    a   defendant'         s presence "    at the arraignment, at every stage of the trial including the

empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as

otherwise provided by these rules, or as excused or excluded by the court for good cause shown."
                                                                 FERETOM6711


         Moore'        s    initial   commencement             date    was      the date       of    his   arraignment,            May   11,   2009.


CrRLJ 3. 3(     c)(   1).     Because Moore was out of custody following his arrest and arraignment, the

State had 90 days to               bring him    to trial.      CrRLJ 3. 3( b)( 2)( i). Moore' s commencement date reset


every time he filed a written waiver of the time for trial rule and any time he failed to appear " for

any proceeding              at which [   his]   presence was required."               CrRLJ 3. 3(           c)(   2)( i)   and (   ii). After each


such reset of the commencement date, the State again had 90 days within which to bring Moore

to trial.   See CrRLJ 3. 3( b)( 2)( i)           and   3. 3(   c)(   2).   Moore signed his fourth and last such waiver on


May 24, 2010, with a June 1 commencement date, which reset his time for trial expiration to

September 1, 2010.




                                                                           to
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



                                   1.    Calculation of new May 18, 2011 trial date

              On March 29, 2011, Moore filed his written motion to dismiss for failure to bring him to
                                                                                                                    9
trial   within    the time for trial      rules.   The district   court set a new    trial   date for   May   18,       reasoning


that Moore had failed to appear for any hearings between May 24, 2010, and February 17, 2011,
                                                                       10
and,    therefore,    had    waived     his time for trial   rights.        The record, however, does not reflect that


either the court rules or the district court required Moore' s presence at the status hearings and

continuance        hearings between May 24, 2010,              and     February   17, 2011.    For example, there are no


court orders specifically requiring Moore to appear for these hearings.

              Similarly, CrRLJ 3. 4, which governs a criminal defendant' s presence in courts of limited.

jurisdiction, provides:




9 The record does not reflect whether Moore orally reasserted his time for trial objection after the
district       court set   the   May    18 trial date.   In our view, however, such an oral motion would have
been superfluous because, by that point, Moore had already filed a written motion to dismiss for
failure to comply with the time for trial rules; this motion served as an effective written objection
for purposes of CrRLJ 3. 3( d)( 3).  See Chavez -Romero, 170 Wn. App. at 582 ( citing State v.
George, 160 Wn.2d 727, 158 P. 3d 1169 ( 2007)).


to More specifically, the district court ruled that, because Moore was excused from only the Vosk
Motion hearing, but not from any status conferences or continuance hearings, under CrRLJ
3. 3(   c)(   2)( ii), (1) he waived his right under the time for trial rules when he failed to appear for the
status and continuance            hearings; ( 2) this waiver reset his commencement date to zero, such that
his time for trial began to run anew only when Moore reappeared for the February 17, 2011
hearing; and ( 3) thus, the May 18, 2011 trial date was timely because it was within 90 days of
Moore' s new February 17 commencement date.
              The district court docket confirms that Moore was not present for seven status and
continuance         hearings between        May    24, 2010,   and     February   17, 2011. But there is no evidence in

the record showing that any other defendants were present at these hearings or that their presence
had been required. Nor does the record show that the district court issued bench warrants for any
  absent" Vosk Motion defendants or, at any point in the proceedings, expressed concern about
their absence.




                                                                  10
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



          The defendant shall be present at the arraignment, at every stage of the trial
          including the empaneling of the jury and the return of the verdict, and at the
          imposition of sentence, except as otherwise provided by these rules, or as excused
          or excluded by the court for good cause shown.

CrRLJ 3. 4( a).        Because "[      a] status conference is not a hearing at which [ a criminal defendant' s]

appearance        is   required under         CrR 3. 4( a)," Raschka, 124 Wn.                  App.   at    109 (    emphasis     added),   a




status conference is not a hearing at which a criminal defendant' s appearance is generally

required under         CrRLJ 3. 4.         See Chhom, 162 Wn.2d at 46011. Because the hearings between May

24, 2010,     and       February           17, 2011,    were merely status conference and continuance motion


hearings (   not       arraignments,         stages    of   trial,   or   impositions    of sentence),            CrRLJ 3. 4( a) did not


require Moore' s presence.


          In State       v.   Branstetter, 85 Wn.             App.        123,   127 -28, 935 P. 2d 620, review denied, 132


Wn.2d 1011 ( 1997),              Division One of our court clarified that a defendant' s presence may be

required    for   more        types   of   hearings than those            specified   in the   analogous          CrR 3. 4( a).   The court


further   noted,       however, that this          rule "    is not an exhaustive list of the proceedings at which a


defendant'    s presence         is   required."       Branstetter, 85 Wn.            App.     at   128   n. l.    But Branstetter does


not extend    to include         status and continuance within                   this category.      At a minimum, there must be


a " court rule or court order" requiring a defendant' s presence at a hearing in order for his or her

absence to reset the time for trial. Branstetter, 85 Wn. App. at 128. According to the Branstetter

court,    the "    clear      intent" behind CrR 3. 4 was that the commencement period reset when a




11
   CrRLJ 3. 4 is identical in all material respects to CrR 3. 4; thus, we may apply authority
interpreting CrR 3. 4 to CrRLJ 3. 4. Chhom, 162 Wn.2d at 460.



                                                                          11
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



defendant'     s absence   from   a   hearing "` prevents       the     case   from proceeding."'          85 Wn. App. at 128-

29 ( quoting State v. Johnson, 56 Wn. App. 333, 338, 783 P. 2d 623 ( 1989)).

            The State cites no authority, court rule, or district court order to support its proposition

that Moore was required to appear for these status conference and continuance motion hearings.


Nor has the State made any showing that Moore' s absence from these hearings prevented the

case    from proceeding.        In contrast, Moore argues that ( 1) he was not required to appear for any

of   these hearings between        May     24, 2010,      and   February        17, 2011; (        2) the only hearing at which

his presence was originally required was the Vosk suppression motion hearing, for which he

filed   a   waiver    of appearance      that the       district   court       accepted; (       3)   he did not violate CrRLJ


3. 3( c)( 2)( ii) because the hearings at which he-did not appear did not require his presence; and ( 4)


consequently, contrary to the district court' s ruling, his time for trial commencement date did not

reset on those occasions.



            We hold that the district court erred in treating Moore' s absences from those hearings as

waivers of the time for trial rule and in resetting his commencement date for purposes of

calculating     a new   trial   expiration   date      under   CrRLJ 3. 3(      c)(   2)( ii).   Therefore, setting his trial date

for May 18, 2011, well beyond the expiration of Moore' s last time for trial waiver to September
                                                  12
1, 2010,     violated   CrRLJ 3. 3( b)( 2)( i).




12 We acknowledge that the district court and both parties took great care in the early pretrial
proceedings to assure that Moore executed a waiver for every continuance and that any new trial
date    was    set   before   expiration     of   any existing time for trial date.                    We further note that the
unusual joint Vosk Motion, involving more than 100 different defendants, created a special
management circumstance for the trial court and that both parties and the court had reasonable
grounds to delay the various defendants' trial until this diapositive motion to suppress critical
evidence could be resolved.


                                                                   12
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



                                     2. Circumstances not addressed by CrRLJ 3. 3( a)( 4)

            On direct appeal, the superior court upheld the district court' s denial of Moore' s motion


to dismiss on the additional ground that Moore' s trial had been timely under CrRLJ 3. 3( a)( 4)

because (      1) it had been " delayed by circumstances not addressed" in CrRLJ 3. 3 or 4. 1 ( namely,

the Vosk Motion);           and ( 2) Moore' s pretrial proceedings were lengthy primarily because he had

sought to suppress his breath test results through the Vosk Motion, which involved over 100


other defendants. The superior court agreed with the district court that Moore' s failure to appear


at the hearings between May 24, 2010, and February 17, 2011, had reset his commencement

date; the superior court also ruled that any violation of the time for trial rules was cured by

CrRLJ 33( a)( 4). We disagree.


            The parties and the district court extended the time for trial date with successive waivers


on multiple occasions leading up to the district court' s denial of the Vosk Motion in January

2011.       That the State and district court failed to obtain another waiver and to reset Moore' s trial


date again, before expiration of his last waiver on September 1, 2010, does not excuse the failure

                                                                                     13
to   bring him to       trial   in   a
                                         timely   manner as   the   rules require.




       Nonetheless, these initial conscientious efforts to ensure a timely trial for Moore should
have persisted, especially in light of the repeatedly continued Vosk Motion hearing. Because we
hold that the district court failed to bring Moore to trial in compliance with CrRLJ 3. 3, we need
not address his other arguments about lack of notice or violation of his constitutional speedy trial
right. Gadea -Rivas does not similarly argue that the district court violated his constitutional right
to a speedy trial.

13
     See,   e. g.,   CrRLJ 3. 3( b)( 2) (     requiring the district court to bring an out -of-custody defendant to
trial within 90 days of his or her commencement date).



                                                                      13
                           0




Consolidated Nos. 42707 -9 -I1 and 42715 -0 -II



                                                    B. Mario Gadea -
                                                                   Rivas


          Gadea -
                Rivas was arraigned on December 2, 2009, his initial commencement date under


CrRLJ 3. 3(    c)(   1).       Like Moore, he was not in custody; thus, the State had 90 days to bring him to

trial.   CrRLJ 3. 3( b)( 2)( i). The district          court set a pretrial conference on          April 22, 2010.     Gadea-


Rivas waived his time for trial rights several times, with his last waiver being through December

31, 2010:


          On February 1, 2011, Gadea -Rivas appeared with counsel for a pretrial hearing, at which

the district   court set a         trial date for   February    28, 59 days     after   his last   waiver   had   expired.   On


February 1, Gadea -Rivas timely objected that this February 28 trial date was beyond the 90 days

permitted by the time for trial rules; six days later, he filed a written motion to dismiss on the

same grounds. The district court denied Gadea -
                                              Rivas' motion to dismiss.

                                                     1. "   Failure to appear"


          As   with        Moore, the district      court and   the   superior court ruled     that Gadea- Rivas' " failure


to   appear"   at hearings between May 24, 2010, and February 1, 2011, reset his commencement

date to    zero.     Verbatim Report         of   Proceedings ( VRP)       at   49.   As we note above, nothing in the

applicable rules requires a defendant to appear at a status hearing or a hearing on a motion to

continue.      Neither the State nor the district court cited any authority below for the proposition

that Gadea -
           Rivas was required to appear for these hearings.


          Furthermore, the record does not show that the district court specifically ordered Gadea-

Rivas to appear for any missed status or continuance hearing, for which Washington caselaw




                                                                  14
Consolidated Nos. 42707 -9 -II and 42715 -0 -II



                                                                                   14
does    not require a         defendant'     s presence under   CrR 3. 4( a).           Consequently, both the district court

and     the    superior court erred                               Rivas' " failure to
                                             in ruling that Gadea -                                   appear"   for the status and


continuance hearings reset his commencement date for purposes of calculating a timely trial date.

                                   2. Circumstances not addressed by CrRLJ 3. 3 or 4. 1

              As with Moore, the superior court similarly ruled that ( 1) because Gadea- Rivas' trial had

been "` delayed          by   circumstances ...        not addressed "'      in CrRLJ 3. 3 or 4. 1 ( the Vosk Motion, in


which       he     sought   to    suppress    his breath test   results),    the district court had properly denied his

motion        to dismiss, VRP         at   47 -48 ( quoting CrRLJ 3. 3(     a)(                   Rivas' " failure to appear"
                                                                                  4)); ( 2) Gadea -


at the hearings between May 24, 2010, and February 1, 2011, reset his commencement date; and

 3) any       violation of       the time for trial   rules was cured    by       CrRLJ 3. 3(   a)(   4).   See VRP   at   51. Again,


we disagree. As was the case with Moore, the parties and the district court extended the time for

trial   expiration       date     with     Gadea -
                                                 Rivas'   successive      waivers        on multiple        occasions.      That they

failed to do so this one last time does not excuse the failure to bring Gadea -Rivas to trial in a

timely manner as the rules require.

              We hold, therefore, that CrRLJ 3. 3( h) requires us to remand to the district court with

instructions to dismiss the                 charges   against   both defendants           with prejudice.        Accordingly, we

reverse the superior court' s affirmance of the district court' s denial of their motions to dismiss




14
     See,     e.   g., Raschka, 124 Wn. App. at 109. "            A status conference is not a hearing at which [ a
criminal           defendant' s] appearance is required          under CrR 3. 4( a)." In reviewing a time - -rial
                                                                                                           for t
ruling in a district court case, we may consider authority citing the superior court time - -
                                                                                          for trial
rule, CrR 3. 3, because the CrR 3. 3 language is identical in all material respects to CrRLJ 3. 3.
Chhom, 162 Wn.2d at 460 ( citing Mack, 89 Wn.2d 788).


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their driving under the influence (DUI) charges and remand to the district court to dismiss these

charges with prejudice.
                                                         r




                                                             r



                                                  Hunt, J.




lviaxa, i.




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