WSR 03-07-019

RULES OF COURT

STATE SUPREME COURT


[ March 7, 2003 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrR 3.3, CrR 2.2, CrR 4.1, CrRLJ 3.3, CrRLJ 2.2, CrRLJ 4.1 and JuCR 7.8 )

)))

ORDER

NO. 25700-A-761


The Board for Judicial Administration's Time for Trial Task Force having recommended the adoption of he proposed amendments to CrR 3.3, CrR 2.2, CrR 4.1, CrRLJ 3.3, CrRLJ 2.2, CrRLJ 4.1 and JuCR 7.8, and a majority of the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously for a 90 day comment period.

(b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 90 days from the published date in the Washington Reports. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 7th day of March 2003.
For the Court
Gerry L. Alexander
CHIEF JUSTICE

Purpose For Proposed Amendment to CrR 3.3:

Time-for-Trial Task Force. The Time-for-Trial Task Force was established by the Supreme Court on March 11, 2002, in order to conduct a comprehensive review of the rules governing time-for-trial of criminal cases and making such recommendation for change, if any, it believed warranted. Members of the Time-for-Trial Task Force included judges, prosecuting attorneys, criminal defense attorneys, legislators, and a representative of crime victims.

The fundamental goal for all task force members was to ensure fair and timely trials for all criminal cases in Washington. The task force drafted the enclosed amendments to the court rules on time-for-trial (CrR 3.3, CrRLJ 3.3, and JuCR 7.8) as well as amendments to several related court rules (CrR 2.2, CrR 4.1, CrRLJ 2.2, and CrRLJ 4.1). The proposed amendments to all these rules were unanimously approved by the task force members, with one exception: the "due diligence" amendments (discussed in the proposed amendments to CrR 2.2 and CrRLJ 2.2) were supported by a substantial majority, but not all, of the task force members.

Overview of the Package of Proposed Amendments: Taken as a whole, the proposed changes to all the court rules are intended to:

Improve the administration of justice by reducing the likelihood that criminal cases will be subject to dismissal with prejudice due to minor, inadvertent rule violations.

Simplify the due-diligence requirements from State v. Striker, 87 Wn.2d 870 (1976), and State v. Greenwood, 120 Wn.2d 585 (1993), and change the procedures for obtaining arrest warrants so that due-diligence is addressed early in the case.

Provide courts with greater flexibility for getting cases heard, including flexibility with regard to court congestion.

Simplify and clarify the complicated provisions of these rules.

Increase accountability of the courts.

Provide for the collection of data that will lead to better-informed decisions on policy and resource allocation.

Eliminate the need for significant judicial expansion of the rule in appellate opinions.

Proposed Changes for CrR 3.3: The proposed changes to CrR 3.3 include:

Adding a limited cure period, which would allow courts an additional, short period of time within which to cure a time-for-trial violation. The cure period must be invoked no later than five days after the 60/90-day period has expired.

Adding a 30-day buffer period, which would ensure that following the end of an excluded period of time there will always be at least 30 days within which to bring the case to trial.

Adding a reporting requirement, under which trial courts must report each case that is dismissed for time-for-trial reasons or for which the cure period is applied.

Simplifying and clarifying the rule, including stating more simply and specifically the beginning and ending points for various time periods; eliminating the separate category of "extensions" of time; defining key terms in order to reduce ambiguity; and re-organizing the rule to follow a more logical structure and to keep distinct issues that need to be kept distinct.

Eliminating the need for extensive judicial interpretation of the rule by expressly addressing more of the time-for-trial issues. The task force intends that the courts apply the proposed rule "as is" instead of adding new requirements not already there.

Task Force Report: A detailed discussion of all the proposed amendments, as well as the minority counter-proposal on the due diligence issues, may be found in the Time-for-Trial Task Force's final report (http://www.courts.wa.gov/committee/tft/).

Review by Board for Judicial Administration: The Board for Judicial Administration reviewed the task force's final report. During that review, two small amendments were made to the proposed rules, with the concurrence of an informal executive committee of the task force. The two amendments, incorporated into the enclosed proposals, (1) clarify that the cure period applies to CrR 3.3 (d)(4) and (2) slightly revise the provisions relating to the disqualification of judges and counsel.


CrR 3.3

TIME FOR TRIAL



(a) General Provisions.

(1) Responsibility of Court. It shall be the responsibility of the court to ensure a trial in accordance with this rule to each person charged with ((having committed)) a crime.

(((b))) (2) Precedence Over Civil Cases. Criminal trials shall take precedence over civil trials.

(3) Definitions. For purposes of this rule:

(i) "Pending charge" means the charge for which the allowable time for trial is being computed.

(ii) "Related charge" means a charge based on the same conduct as the pending charge that is ultimately filed in the superior court.

(iii) "Appearance" means the defendant's physical presence in the adult division of the superior court where the pending charge was filed. Such presence constitutes appearance only if (A) the prosecutor was notified of the presence and (B) the presence is contemporaneously noted on the record under the cause number of the pending charge.

(iv) "Arraignment" means the date determined under CrR 4.1(b).

(v) "Detained in jail" means held in the custody of a correctional facility pursuant to the pending charge. Such detention excludes any period in which a defendant is on electronic home monitoring, is being held in custody on an unrelated charge or hold, or is serving a sentence of confinement.

(4) Construction. The allowable time for trial shall be computed in accordance with this rule. If a trial is timely under the language of this rule, but was delayed by circumstances not addressed in this rule or CrR 4.1, the pending charge shall not be dismissed unless the defendant's constitutional right to a speedy trial was violated.

(5) Related Charges. The computation of the allowable time for trial of a pending charge shall apply equally to all related charges.

(6) Reporting of Dismissals and Untimely Trials. The court shall report to the Administrative Office of the Courts, on a form determined by that office, any case in which

(i) the court dismissed a charge on a determination pursuant to section (h) that the charge had not been brought to trial within the time limit required by this rule, or

(ii) the time limits would have been violated absent the cure period authorized by section (g).

(b) Time for Trial.

(1) Defendant Detained in Jail. A defendant who is detained in jail shall be brought to trial within the longer of

(i) 60 days after the commencement date specified in this rule, or

(ii) the time specified under subsection (b)(5).

(2) Defendant Not Detained in Jail. A defendant who is not detained in jail shall be brought to trial within the longer of

(i) 90 days after the commencement date specified in this rule, or

(ii) the time specified in subsection (b)(5).

(3) Release of Defendant. If a defendant is released from jail before the 60-day time limit has expired, the limit shall be extended to 90 days.

(4) Return to Custody Following Release. If a defendant not detained in jail at the time the trial date was set is subsequently returned to custody on the same or related charge, the 90-day limit shall continue to apply. If the defendant is detained in jail when trial is reset following a new commencement date, the 60-day limit shall apply.

(5) Allowable Time After Excluded Period. If any period of time is excluded pursuant to section (e), the allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.

(((c) Time for Arraignment and Trial.

(1) Cases Filed Directly in Superior Court. If the defendant is detained in jail or subject to conditions of release, the defendant shall be arraigned not later than 14 days after the date the information or indictment is filed directly in the superior court. If the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after that appearance in superior court which next follows the filing of the information or indictment. A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment. A defendant released from jail whether or not subjected to conditions of release pending trial shall be brought to trial not later than 90 days after the date of arraignment.

(2) Cases Filed Initially in District Court.

(i) If after proceedings have been initiated in district court an information or indictment is filed with the superior court, and if at the time the information or indictment is filed the defendant is detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after the date the information or indictment is filed. If after proceedings have been initiated in district court an information or indictment is filed with the superior court, and if at the time the information or indictment is filed the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after the date of that appearance in superior court which next follows the filing of the information or indictment. A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment, less time elapsed in district court. A defendant released from jail whether or not subjected to conditions of release pending trial shall be brought to trial not later than 90 days after the date of arraignment, less time elapsed in district court.

(ii) "Time elapsed in district court" means the following: If at the time a complaint is filed with the district court a defendant is detained in jail or subjected to conditions of release, time elapsed in district court commences on the date the complaint is filed. If at the time a complaint is filed with the district court the defendant is not detained in jail or subjected to conditions of release, time elapsed in district court commences on the date of the defendant's appearance in district court which next follows the filing of the complaint. Time elapsed in district court ends with the earlier of (a) an oral or written order of dismissal entered by the district court, or (b) the filing of an information or indictment in superior court. Time elapsed in district court does not include time which was the subject of a stipulation entered into pursuant to CrRLJ 3.2.1 (d)(3).

(3) Cases Filed Initially in Juvenile Court. If an information or indictment is filed with the superior court after a juvenile court has declined jurisdiction, and if at the time the information or indictment is filed the defendant is detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after the

date the information or indictment is filed. If an information or indictment is filed with the superior court after a juvenile court has declined jurisdiction, and if at the time the information or indictment is filed the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after that appearance in superior court which next follows the filing of the information or indictment. A defendant not released from jail pending trial in superior court shall be brought to trial not later than 60 days after the date of arraignment. A defendant released from jail whether or not subjected to conditions of release pending trial in superior court shall be brought to trial not later than 90 days after the date of arraignment.

(4) Untimely Arraignment. If a defendant is not arraigned within the time limits of this rule and an objection to the date of arraignment has been made as required by section (e) of this rule, the time for trial established in this section shall commence on the last day the defendant could properly have been arraigned.

(((5) Rearraignment. If a defendant is required to be rearraigned on a charge that arises out of the same occurrence and has the same elements of proof as those upon which the defendant was previously arraigned, the time for trial established in this section shall commence on the date of the previous arraignment in superior court.

(6) Arraignment Defined. As used in CrR 3.3, "arraignment" means the date on which a plea is entered to the charge.

(d) Extensions of Time for Trial. The following extensions of time limits apply notwithstanding the provisions of section (c):

(1) Revocation of Release. A defendant who has been released from jail pending trial, pursuant to an order imposing conditions of release, but whose release is then revoked by order of the court, shall be brought to trial within such a time period that the defendant spends no more than a total of 60 days in jail following the date of arraignment, and in any event within such a time period that the defendant is tried not later than a total of 90 days after the date of arraignment unless the time period is otherwise extended by this rule.

(2) Failure To Appear. When a defendant who has already been arraigned fails to appear for any trial or pretrial proceeding at which the defendant's presence is required pursuant to rule 3.4, the defendant shall be brought to trial not later than 60 days after the date upon which the defendant is present in the county where the criminal charge is pending and the defendant's presence has been made known to the court on the record, if the defendant is thereafter detained in jail or not later than 90 days after such date if the defendant is not detained in jail whether or not the defendant is thereafter subjected to conditions of release.

(3) Mistrial and New Trial. If before verdict the superior court orders a mistrial, the defendant shall be brought to trial not later than 60 days after the oral order of the court if the defendant is thereafter detained in jail or not later than 90 days after the oral order if the defendant is not detained in jail and whether or not the defendant is subjected to conditions of release. If after verdict the superior court orders a new trial, the defendant shall be brought to trial not later than 60 days after entry of the written order of the court if the defendant is thereafter detained in jail, or not later than 90 days after entry of such written order if the defendant is not detained in jail and whether or not the defendant is thereafter subjected to conditions of release.

(4) Trial After Appeal or Stay. If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in superior court, with notice to both parties of any such appearance, which next follows receipt by the clerk of the superior court of the mandate or other written order, if after such appearance the defendant is detained in jail, or not later than 90 days after such appearance if the defendant is thereafter released whether or not subject to conditions of release.

(5) Change of Venue. If a change of venue has been granted pursuant to rule 5.2, the case shall be transferred to the receiving court as soon as practicable but within 7 days and the defendant shall be brought to trial as prescribed by this rule or not later than 30 days following the date upon which the court to which the case is being transferred for trial receives the filing of the case, whichever is later. If, however, after a change of venue is attempted, the criminal calendar of the receiving county will prevent compliance with the time limits within this section, the trial shall commence on the earliest available date permitted by the criminal calendar of the receiving county.

(6) Disqualification. If the prosecuting attorney or judge becomes disqualified from participating in the case, the defendant shall be brought to trial as prescribed by this rule or not later than 30 days following the disqualification, whichever is later.

(7) Withdrawal of Guilty Plea. If a defendant has been permitted to withdraw a plea of guilty, the defendant shall be brought to trial not later than 60 days after the date of the written order allowing withdrawal of the guilty plea if the defendant is thereafter detained in jail or not later than 90 days if the defendant is thereafter released from jail,

whether or not subjected to conditions of release.

(8) Five-Day Extensions. When a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the court or the parties, the court, even if the time for trial has expired, may extend the time within which trial must be held for no more than 5 days exclusive of Saturdays, Sundays, or holidays unless the defendant will be substantially prejudiced in his or her defense. The court must state on the record or in writing the reasons for the extension. If the nature of the unforeseen or unavoidable circumstance continues, the court may extend the time for trial in increments of not to exceed 5 days exclusive of Saturdays, Sundays, or holidays unless the defendant will be substantially prejudiced in his or her defense. The court must state on the record or in writing the reasons for the extension.))

(c) Commencement Date.

(1) Initial Commencement Date. The initial commencement date shall be the date of arraignment as determined under CrR 4.1.

(2) Resetting of Commencement Date. On occurrence of one of the following events, a new commencement date shall be established, and the elapsed time shall be reset to zero. If more than one of these events occurs, the commencement date shall be the latest of the dates specified in this subsection.

(i) Waiver. The filing of a written waiver of the defendant's rights under this rule signed by the defendant. The new commencement date shall be the date specified in the waiver, which shall not be earlier than the date on which the waiver was filed. If no date is specified, the commencement date shall be the date of the trial contemporaneously or subsequently set by the court.

(ii) Failure to Appear. The failure of the defendant 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.

(iii) New Trial. The entry of an order granting a mistrial or new trial or allowing the defendant to withdraw a plea of guilty. The new commencement date shall be the date the order is entered.

(iv) Appellate Review or Stay. The acceptance of review or grant of a stay by an appellate court. The new commencement date shall be the date of the defendant's appearance that next follows the receipt by the clerk of the superior court of the mandate or written order terminating review or stay.

(v) Collateral Proceeding. The entry of an order granting a new trial pursuant to a personal restraint petition, a habeas corpus proceeding, or a motion to vacate judgment. The new commencement date shall be the date of the defendant's appearance that next follows either the expiration of the time to appeal such order or the receipt by the clerk of the superior court of notice of action terminating the collateral proceeding, whichever comes later.

(vi) Change of Venue. The entry of an order granting a change of venue. The new commencement date shall be the date of the order.

(vii) Disqualification of Counsel. The disqualification of the defense attorney or prosecuting attorney. The new commencement date shall be the date of the disqualification.

(((e) Objection to Arraignment Date -- Waiver of Objection. A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment pursuant to section (c) of this rule, and the time for trial set out in section (c) shall be deemed to have commenced on that date. Failure of a party to object as required shall be a waiver of the objection, and the date of arraignment shall be conclusively established as the date upon which the defendant was actually arraigned.))

(((f) Setting of Trial Date -- Notice to Parties -- Objection to Trial Date -- Waiver)) (d) Trial Settings and Notice -- Objections -- Loss of Right to Object.

(1) Initial Setting of Trial Date. The court shall, within 15 days of the defendant's actual arraignment in superior court((,)) or at the omnibus hearing, set a date for trial which is within the time limits prescribed by this rule((,)) and notify counsel for each party of the date set. If a ((party)) defendant is not represented by counsel, the notice shall be given to the ((party,)) defendant and may be mailed to the ((party's)) defendant's last known address. The notice shall set forth the proper date of the defendant's arraignment ((as established at the time of arraignment)) and the date set for trial. ((A party who objects to the date set up on the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a trial commenced on such date, or on an extension of such date properly granted pursuant to this rule, is not within the time limits prescribed by this rule.))

(2) Resetting of Trial Date. When the court determines that the trial date should be reset for any reason, including but not limited to the applicability of a ((period of extension)) new commencement date pursuant to ((section (d))) subsection (c)(2) or a period of exclusion pursuant to section (((g))) (e), the court shall set a new date for trial which is within the time limits prescribed and notify each counsel or party of the date set. ((as provided in subsection (f)(1).))

(3) Objection to Trial Setting. A party who objects to the date set upon the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. ((Failure of a party, for any reason, to make such a motion shall be a waiver of the objection)) A party who fails, for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date ((or on an extension of such date granted pursuant to subsection (d)(8))) is not within the time limits prescribed by this rule.

(4) Loss of Right to Object. If a trial date is set outside the time allowed by this rule, but the defendant lost the right to object to that date pursuant to subsection (d)(3), that date shall be treated as the last allowable date for trial, subject to section (g). A later trial date shall be timely only if the commencement date is reset pursuant to subsection (c)(2) or there is a subsequent excluded period pursuant to section (e) and subsection (b)(5).

(((g))) (e) Excluded Periods. The following periods shall be excluded in computing ((the time for arraignment and)) the time for trial:

(1) Competency Proceedings. All proceedings relating to the competency of a defendant to stand trial on the pending charge, beginning on the date when the competency examination is ordered and terminating when the court enters a written order finding the defendant to be competent((;)).

(2) Proceedings on Unrelated Charges. Arraignment, ((Preliminary)) pre-trial proceedings, ((and)) trial, and sentencing on an unrelated charge. ((on another charge (except as otherwise provided by CrR 3.3 (c)(5);))

(3) Continuances. Delay granted by the court pursuant to section (((h;))) (f).

(4) Period between Dismissal and Refiling. The time between the dismissal of a charge and the ((defendant's arraignment or rearraignment in superior court following the)) refiling of the same or related charge((;)).

(5)(([Reserved.])) Disposition of Related Charge. The period between the commencement of trial or the entry of a plea of guilty on one charge and the defendant's arraignment in superior court on a related charge.

(6) Defendant Subject to Foreign or Federal Custody or Conditions. The time during which a defendant is detained in jail or prison outside the state of Washington or in a federal jail or prison and the time during which a defendant is subjected to conditions of release not imposed by a court of the State of Washington((;)).

(7) Juvenile Proceedings. All proceedings in juvenile court((;)).

(8) Unavoidable or Unforeseen Circumstances. Unavoidable or unforeseen circumstances affecting the time for trial beyond the control of the court or of the parties. This exclusion also applies to the cure period of section (g).

(9) Disqualification of Judge. A five-day period of time commencing with the disqualification of the judge to whom the case is assigned for trial.

(((h))) (f) Continuances. Continuances or other delays may be granted as follows:

(1) Written Agreement. Upon written agreement of the parties, which must be signed by the defendant or all defendants, the court may continue the trial date to a specified date. ((The agreement shall be effective when approved by the court on the record or in writing.))

(2) Motion by the Court or a Party. On motion of the ((State,)) the court or a party, the court may continue the ((case when)) trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be ((substantially)) prejudiced in the presentation of ((the)) his or her defense. The motion must be ((filed on or)) made before the ((date set for trial or the last day of any continuance or extension granted pursuant to this rule)) time for trial has expired. The court must state on the record or in writing the reasons for the continuance. The bringing of such motion by or on behalf of any party waives that party's objection to the requested delay.

(g) Cure Period. The court may continue the case beyond the limits specified in section (b) on motion of the court or a party made within five days after the time for trial has expired. Such a continuance may be granted only once in the case upon a finding on the record or in writing that the defendant will not be substantially prejudiced in the presentation of his or her defense. The period of delay shall be for no more than 14 days for a defendant detained in jail, or 28 days for a defendant not detained in jail, from the date that the continuance is granted. The court may direct the parties to remain in attendance or be on-call for trial assignment during the cure period.

((i)) (h) Dismissal With Prejudice. A ((criminal)) charge not brought to trial within the time ((period provided by)) limit determined under this rule shall be dismissed with prejudice. The State shall provide notice of dismissal to the victim and at the court's discretion shall allow the victim to address the court regarding the impact of the crime. No case shall be dismissed for time-to-trial reasons except as expressly required by this rule, a statute, or the state or federal constitution.

(((j) Waiver. A defendant may waive his or her time for trial rights. A waiver shall be in writing and shall be signed by the defendant. The waiver shall be to a date certain beyond the current expiration date as calculated pursuant to this rule or for a period of days beyond the current expiration date.))

Purpose for Proposed Amendment to CrR 2.2:

The proposed changes to CrR 2.2 are intended to address the "due diligence" issues from State v. Striker, 87 Wn.2d 870 (1976), and State v. Greenwood, 120 Wn.2d 585 (1993). The intent is to simplify the Striker/Greenwood issues and resolve them early in the case, thereby allowing the State a meaningful opportunity to cure any deficiencies in their efforts to locate the defendant without causing any prejudice to the defendant. Under this proposal, defendants would be protected from prejudicial delays and fewer cases would need to be dismissed with prejudice. (The proposed amendments to CrR 2.2 are supported by a substantial majority, but not all, of the task force members. See the task force's final report for a full discussion.)

For more details, see the purpose statement for the proposed amendments to CrR 3.3 and the Time-for-Trial Task Force's Final Report (http://www.courts.wa.gov/committee/tft/).


CrR 2.2

WARRANT OF ARREST AND SUMMONS



(a) Warrant of Arrest.

(1) Generally. If an indictment is found or an information is filed, the court may direct the clerk to issue a warrant for the arrest of the defendant.

(2) Probable Cause. Before ruling on a request for a warrant the court may require the complainant to appear personally and may examine under oath the complainant and any witnesses the complainant may produce. A warrant of arrest may not issue unless the court determines that there is probable cause to believe that the defendant committed the offense charged. The court shall determine probable cause based on an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant. Sworn testimony shall be recorded electronically or stenographically. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations and may be hearsay in whole or in part.

(3) Ascertaining Defendant's Current Address.

(i) Search for Address. The court shall not issue a warrant unless it determines that the complainant has attempted to ascertain the defendant's current address by searching the following: (A) the District Court Information System database (DISCIS), (B) the driver's license and identicard database maintained by the Department of Licenses; and (C) the database maintained by the Department of Corrections listing persons incarcerated and under supervision. The court in its discretion may require that other databases be searched.

(ii) Exemptions from Address Search. The search required by subdivision (i) shall not be required if (A) the defendant has already appeared in court after filing of the same case, (B) the defendant is known to be in custody, or (C) the defendant's name is unknown.

(iii) Effect of Erroneous Issuance. If a warrant is erroneously issued in violation of this subsection (a)(3), that error shall not affect the validity of the warrant.

(b) Issuance of Summons in Lieu of Warrant.

(1) Generally. If an indictment is found or an information is filed, the court may direct the clerk to issue a summons commanding the defendant to appear before the court at a specified time and place.

(2) When Summons Must Issue. If the indictment or information charges only the commission of a misdemeanor or a gross misdemeanor, the court shall direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent bodily harm to the accused or another, in which case it may issue a warrant.

(3) Summons. A summons shall be in writing and in the name of the State of Washington, shall be signed by the clerk with the title of the office, and shall state the date when issued and the county where issued. It shall state the name of the defendant and shall summon the defendant to appear before the court at a stated time and place.

(4) Failure To Appear on Summons. If a person fails to appear in response to a summons, or if service is not effected within a reasonable time, a warrant for arrest may issue.

(c) Requisites of a Warrant. The warrant shall be in writing and in the name of the State of Washington, shall be signed by the clerk with the title of the office, and shall state the date when issued and the county where issued. It shall specify the name of the defendant, or if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty. The warrant shall specify the offense charged against the defendant and that the court has found that probable cause exists to believe the defendant has committed the offense charged and shall command that the defendant be arrested and brought forthwith before the court issuing the warrant. If the offense is bailable, the judge shall set forth in the order for the warrant, bail, or other conditions of release.

(d) Execution; Service.

(1) Execution of Warrant. The warrant shall be directed to all peace officers in the state and shall be executed only by a peace officer.

(2) Service of Summons. The summons may be served any place within the state. It shall be served by a peace officer who shall deliver a copy of the same to the defendant personally, or it may be served by mailing the same, postage prepaid, to the defendant at the defendant's address.

(e) Return. The officer executing a warrant shall make return to the court before whom the defendant is brought pursuant to these rules. At the request of the prosecuting attorney any unexecuted warrant shall be returned to the issuing court to be canceled. The person to whom a summons has been delivered for service shall, on or before the return date, file a return with the court before which the summons is returnable. For reasonable cause, the court may order that the warrant be returned to it.

(f) Defective Warrant or Summons.

(1) Amendment. No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any irregularity in the warrant or summons, but the warrant or summons may be amended so as to remedy any such irregularity.

(2) Issuance of New Warrant or Summons. If during the preliminary examination of any person arrested under a warrant or appearing in response to a summons, it appears that the warrant or summons does not properly name or describe the defendant or the offense with which the defendant is charged, or that although not guilty of the offense specified in the warrant or summons, there is reasonable ground to believe that the defendant is guilty of some other offense, the judge shall not discharge or dismiss the defendant but may allow a new indictment or information to be filed and shall thereupon issue a new warrant or summons.

(g) Failure to Issue Warrant -- Dismissal. Upon five days' notice to the prosecuting attorney, the court shall dismiss a charge without prejudice if (i) 90 days have elapsed since the indictment or information was filed and (ii) on the date that the order of dismissal is entered, no warrant has been issued and the defendant has not appeared in court.

Purpose For Proposed Amendment to CrR 4.1:

The proposed changes to CrR 4.1 include provisions related to timely arraignments that are currently a part of CrR 3.3. The task force proposes moving these provisions to CrR 4.1 so that the timely arraignment issues are kept distinct from the timely trial issues. Other changes are also proposed in order to coordinate this rule with the proposed amendments to CrR 3.3. For more details, see the purpose statement for the proposed amendments to CrR 3.3 and the task force's final report (http://www.courts.wa.gov/committee/tft/).


CrR 4.1

ARRAIGNMENT



(a) Time. ((Promptly after the indictment or information has been filed, the defendant shall be arraigned thereon in open court.))

(1) Defendant Detained in Jail. The defendant shall be arraigned not later than 14 days after the date the information or indictment is filed in the adult division of the superior court, if the defendant is (i) detained in the jail of the county where the charges are pending or (ii) subject to conditions of release imposed in connection with the same charges.

(2) Defendant Not Detained in Jail. The defendant shall be arraigned not later than 14 days after that appearance which next follows the filing of the information or indictment, if the defendant is not detained in that jail or subject to such conditions of release. Any delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for that delay. For purposes of this rule, "appearance" has the meaning defined in CrR 3.3 (a)(3)(iii).

(b) Objection to Arraignment Date -- Loss of Right to Object. A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment. That date shall constitute the arraignment date for purposes of CrR 3.3. A party who fails to object as required shall lose the right to object, and the arraignment date shall be conclusively established as the date upon which the defendant was actually arraigned.

(((b))) (c) Counsel. If the defendant appears without counsel, the court shall inform ((him of his)) the defendant of his or her right to have counsel before being arraigned. The court shall inquire if ((he)) the defendant has counsel. If ((he)) the defendant is not represented and is unable to obtain counsel, counsel shall be assigned ((to him)) by the court, unless otherwise provided.

(((c))) (d) Waiver of Counsel. If the defendant chooses to proceed without counsel, the court shall ascertain whether this waiver is made voluntarily, competently and with knowledge of the consequences. If the court finds the waiver valid, an appropriate finding shall be entered in the minutes. Unless the waiver is valid, the court shall not proceed with the arraignment until counsel is provided. Waiver of counsel at arraignment shall not preclude the defendant from claiming ((his)) the right to counsel in subsequent proceedings in the cause, and the defendant shall be so informed. If such claim for counsel is not timely, the court shall appoint counsel but may deny or limit a continuance.

(((d))) (e) Name. Defendant shall be asked his or her true name. If ((he)) the defendant alleges that ((his)) the true name is one other than that by which he or she is charged, it must be entered in the minutes of the court, and subsequent proceedings shall be had ((against him)) by that name or other names relevant to the proceedings.

(((e))) (f) Reading. The indictment or information shall be read to defendant, unless the reading is waived, and a copy shall be given to defendant.

Purpose For Proposed Amendment to CrRLJ 3.3:

See the purpose statement for the proposed amendments to CrR 3.3 and the task force's final report (http://www.courts.wa.gov/committee/tft/).


CrRLJ RULE 3.3

TIME FOR TRIAL



(a) General Provisions.

(1) Responsibility of Court. It shall be the responsibility of the court to ensure a trial in accordance with this rule to each person charged with ((having committed)) a crime.

(((b))) (2) Precedence Over Civil Cases. Criminal trials shall take precedence over civil trials.

(3) Definitions. For purposes of this rule:

(i) "Pending charge" means the charge for which the allowable time for trial is being computed.

(ii) "Related charge" means a charge based on the same conduct as the pending charge that is ultimately filed in the trial court.

(iii) "Appearance" means the defendant's physical presence in the trial court. Such presence constitutes appearance only if (A) the prosecutor was notified of the presence and (B) the presence is contemporaneously placed on the record under the cause number of the pending charge.

(iv) "Arraignment" means the date determined under CrRLJ 4.1(b).

(v) "Detained in jail" means held in the custody of a correctional facility pursuant to the pending charge. Such detention excludes any period in which a defendant is on electronic home monitoring, is being held in custody on an unrelated charge or hold, or is serving a sentence of confinement.

(vi) "Trial court" means the court where the pending charge was filed.

(4) Construction. The allowable time for trial shall be computed in accordance with this rule. If a trial is timely under this language of this rule but was delayed by circumstances not addressed in this rule or CrRLJ 4.1, the pending charge shall not be dismissed unless the defendant's constitutional right to a speedy trial was violated.

(5) Related Charges. The computation of the allowable time for trial of a pending charge shall apply equally to all related charges.

(6) Reporting of Untimely Trials. The court shall report to the Administrative Office of the Courts, on a form determined by that office, any case in which

(i) the court dismissed a charge on a determination pursuant to section (h) that the charge had not been brought to trial within the time allowed by this rule, or

(ii) the time limits would have been violated absent the cure period authorized by section (g).

(b) Time for Trial.

(1) Defendant Detained in Jail. A defendant who is detained in jail shall be brought to trial within the longer of

(i) 60 days after the commencement date specified in this rule, or

(ii) the time specified in subsection (b)(5).

(2) Defendant Not Detained in Jail. A defendant who is not detained in jail shall be brought to trial within the longer of

(i) 90 days after the commencement date specified in this rule, or

(ii) the time specified in subsection (b)(5).

(3) Release of Defendant. If a defendant is released from jail before the 60-day time limit has expired, the limit shall be extended to 90 days.

(4) Return to Custody following Release. If a defendant not detained in jail at the time the trial date was set is subsequently returned to custody on the same or related charge, the 90-day limit shall continue to apply. If the defendant is detained in jail when trial is reset following a new commencement date, the 60-day limit shall apply.

(5) Allowable Time after Excluded Period. If any period of time is excluded pursuant to section (f), the allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.

(((c) Time for Arraignment and Trial.

(1) Cases Filed in Court. If the defendant is detained in jail, or subject to conditions of release, the defendant shall be arraigned not later than 15 days after the date the complaint is filed in court. If the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 15 days after that appearance in court which next follows the filing of the complaint or citation and notice. A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment. A defendant released from jail whether or not subjected to conditions of release pending trial shall be brought to trial not later than 90 days after the date of arraignment.

(2) [Reserved.]

(3) Cases Filed Initially in Juvenile Court. If a complaint or citation and notice is filed with the court after a juvenile court has declined jurisdiction, and if at the time the complaint or citation and notice is filed the defendant is detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 15 days after the date the complaint or citation and notice is filed. If a complaint or citation and notice is filed with the court after a juvenile court has declined jurisdiction, and if at the time the complaint or citation and notice is filed the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 15 days after the appearance in court which next follows the filing of the complaint or citation and notice. A defendant not released from jail pending trial in court shall be brought to trial not later than 60 days after the date of arraignment. A defendant released from jail whether or not subjected to conditions of release shall be brought to trial not later than 90 days after the date of arraignment.

(4) Untimely Arraignment. If a defendant is not arraigned within the time limits of this rule and an objection to the date of arraignment has been made as required by section (e) of this rule, the time for trial established in this section shall commence on the last day the defendant could properly have been arraigned.

(5) Rearraignment. If a defendant is required to be rearraigned on a charge that arises out of the same occurrence and has the same elements of proof as those upon which the defendant was previously arraigned, the time for trial established in this section shall commence on the date of the previous arraignment.

(6) Arraignment Defined. As used in this rule, "arraignment" shall be defined as in rule 4.1.

(d) Extensions of Time for Trial. The following extensions of time limits apply notwithstanding the provisions of section (c):

(1) Revocation of Release. A defendant who has been released from jail pending trial, pursuant to an order imposing conditions of release, but whose release is then revoked by order of the court, shall be brought to trial within such a time period that the defendant spends no more than a total of 60 days in jail following the date of arraignment, and in any event within such a time period that the defendant is tried not later than a total of 90 days after the date of arraignment unless the time period is otherwise extended by this rule.

(2) Failure To Appear. When a defendant who has already been arraigned fails to appear for any trial or pretrial proceeding at which the defendant's presence is required, the defendant shall be brought to trial not later than 60 days after the date upon which the defendant is present in the county where the criminal charge is pending and the defendant's presence has been made known to the court on the record, if the defendant is thereafter detained in jail or not later than 90 days after such date if the defendant is not detained in jail whether or not the defendant is thereafter subjected to conditions of release.

(3) Mistrial and New Trial. If before verdict the court orders a mistrial, the defendant shall be brought to trial not later than 60 days after the oral or written order of the court, whichever first occurs, if the defendant is thereafter detained in jail or not later than 90 days after the order if the defendant is not detained in jail and whether or not the defendant is subjected to conditions of release. If after verdict the court orders a new trial, the defendant shall be brought to trial not later than 60 days after entry of the oral or written order of the court if the defendant is thereafter detained in jail, or not later than 90 days after entry of such order if the defendant is not detained in jail whether or not the defendant is thereafter subjected to conditions of release.

(4) Trial After Appellate Review or Stay. If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in court, with notice to both parties of any such appearance, which next follows receipt by the clerk of the court of the mandate or other written order, if after such appearance the defendant is detained in jail, or not later than 90 days after such appearance if the defendant is thereafter released whether or not subject to conditions of release.

(5) Change of Venue. If a change of venue has been granted, the case shall be transferred to the receiving court as soon as practicable but within 7 days and the defendant shall be brought to trial as prescribed by this rule or not later than 30 days following the date upon which the court to which the case is being transferred for trial receives the filing of the case, whichever is later. If, however, after a change of venue is attempted, the criminal calendar of the receiving county will prevent compliance with the time limits within this section, the trial shall commence on the earliest available date permitted.

(6) Disqualification. If the prosecuting authority or judge becomes disqualified from participating in the case, the defendant shall be brought to trial as prescribed by this rule or not later than 30 days following the disqualification, whichever is later.

(7) Withdrawal of Guilty Plea. If a defendant has been permitted to withdraw a plea of guilty, the defendant shall be brought to trial not later than 60 days after the date of the written order allowing withdrawal of the guilty plea if the defendant is thereafter detained in jail or not later than 90 days if the defendant is thereafter released from jail,

whether or not subjected to conditions of release.

(8) Five-Day Extensions. When a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the court or the parties, the court, even if the time for trial has expired, may extend the time within which trial must be held for no more than 5 days unless the defendant will be substantially prejudiced in his or her defense. The court must state on the record or in writing the reasons for the extension. If the nature of the unforeseen or unavoidable circumstance continues, the court may extend the time for trial in increments of not to exceed 5 days unless the defendant will be substantially prejudiced in his or her defense. The court must state on the record or in writing the reasons for the extension.))

(c) Commencement date.

(1) Initial Commencement Date. The initial commencement date shall be the date of arraignment as determined under CrRLJ 4.1.

(2) Resetting of commencement date. On occurrence of one of the following events, a new commencement date shall be established, and the elapsed time shall be reset to zero. If more than one of these events occurs, the commencement date shall be the latest of the dates specified in this subsection.

(i) Waiver. The filing of a written waiver of the defendant's rights under this rule signed by the defendant. The new commencement date shall be the date specified in the waiver, which shall not be earlier than the date on which the waiver was filed. If no date is specified, the commencement date shall be the date of the trial contemporaneously or subsequently set by the court.

(ii) Failure to Appear. The failure of the defendant 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.

(iii) New Trial. The entry of an order granting a mistrial or a new trial or allowing the defendant to withdraw a plea of guilty. The new commencement date shall be the date the order is entered.

(iv) Appellate Review or Stay. The acceptance of review or grant of a stay by an appellate court, or the issuance of a writ of certiorari, mandamus, or prohibition. The new commencement date shall be the date of the defendant's appearance that next follows the receipt by the clerk of the trial court of the mandate or written order terminating review or stay.

(v) Collateral Proceeding. The entry of an order granting a new trial pursuant to a personal restraint proceeding, a habeas corpus proceedings, or a motion to vacate judgment. The new commencement date shall be the date of the defendant's appearance that next follows either the expiration of the time to appeal such order or the receipt by the clerk of the trial court of notice of action terminating the collateral proceeding, whichever comes later.

(vi) Change of venue. The entry of an order granting a change of venue. The new commencement date shall be the date of the order.

(vii) Disqualification of Counsel. The disqualification of the defense attorney or prosecuting attorney. The new commencement date shall be the date of the disqualification.

(viii) Deferred Prosecution. The filing of a motion for deferred prosecution. The new commencement date shall be the date that an order is entered denying the motion or revoking deferred prosecution.

(((e) Objection to Arraignment Date -- Waiver of Objection))

((A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment pursuant to section (c) of this rule, and the time for trial set out in section (c) shall be deemed to have commenced on that date. Failure of a party to object as required shall be a waiver of the objection, and the date of arraignment shall be conclusively established as the date upon which the defendant was actually arraigned.))

(((f) Setting of Trial Date -- Notice to Parties -- Objection to Trial Date -- Waiver of Objection)) (d) Trial Settings and Notice -- Objections -- Loss of Right to Object.

(1) Initial Setting of Trial Date. The court shall, within 15 days of the defendant's actual arraignment in the trial court((,)) or at the ((pretrial)) omnibus hearing, set a date for trial which is within the time limits prescribed by this rule((,)) and notify ((the lawyer)) counsel for each party of the date set. If a ((party)) defendant is not represented by ((a lawyer)) counsel, the notice ((of the trial date)) shall be given to the ((party)) defendant((,)) and may be mailed to the ((party's)) defendant's last known address. The notice shall set forth the proper date of the defendant's arraignment ((as established at the time of arraignment,)) and the date set for trial. ((A party who objects to the date set upon the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a trial commenced on such a date, or on an extension of such date properly granted pursuant to this rule, is not within the time limits prescribed by this rule.))

(2) Resetting of Trial Date. When the court determines that the trial date should be reset for any reason, including but not limited to the applicability of a ((period of extension)) new commencement date pursuant to ((section (d))) subsection (c)(2) or a period of exclusion pursuant to section (((g))) (e), the court shall set a new date for trial which is within the time limits prescribed and notify each ((lawyer or)) party of the date set ((in subsection (f)(1))).

(3) Objection to Trial Setting. A party who objects to the date set upon the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set a trial within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. ((Failure of a party, for any reason, to make such a motion shall be a waiver of the objection)) A party who fails, for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date((, or on any extension of such date granted pursuant to subsection (d)(8),)) is not within the time limits prescribed by this rule.

(4) Loss of Right to Object. If a trial date is set outside the time allowed by this rule, but the defendant lost the right to object to that date pursuant to subsection (d)(3), that date shall be treated as the last allowable date for trial, subject to section (g). A later trial date shall be timely only if the commencement date is reset pursuant to subsection (c)(2) or there is a subsequent excluded period pursuant to section (e) and subsection (b)(5).

(((g))) (e) Excluded Periods. The following periods shall be excluded in computing ((the time for arraignment and)) the time for trial:

(1) Competency Proceedings. All proceedings relating to the competency of a defendant to stand trial on the pending charge, beginning on the date when the competency examination is ordered and terminating when the court enters ((an)) a written order finding the defendant to be competent((;)).

(2) Proceedings on Unrelated Charges. Arraignment, ((Preliminary)) pre-trial proceedings, ((and)) trial, and sentencing on ((another)) an unrelated charge ((except as otherwise provided by subsection (c)(5);)).

(3) Continuances. Delay granted by the court pursuant to section (((h;))) (f).

(4) Period between Dismissal and Filing. The time between the dismissal of a charge and the ((defendant's arraignment or rearraignment in court following the)) refiling of the same or related charge((;)).

(5) Disposition of Related Charge. The period between the commencement of trial or the entry of a plea of guilty on one charge and the defendant's arraignment in the trial court on a related charge.

(((5))) (6) Defendant Subject to Foreign or Federal Custody or Conditions. The time during which a defendant is detained in jail or prison outside the county in which the defendant is charged or in a federal jail or prison and the time during which a defendant is subjected to conditions of release not imposed by a court of the State of Washington((;)).

(((6))) (7) Juvenile Proceedings. All proceedings in juvenile court.

(8) Unavoidable or Unforeseen Circumstances. Unavoidable or unforeseen circumstances affecting the time for trial beyond the control of the court or of the parties. This exclusion also applies to the cure period of section (g).

(9) Disqualification of Judge. A five-day period of time commencing with the disqualification of the judge to whom the case is assigned for trial.

(((h))) (f) Continuances. Continuances or other delays may be granted as follows:

(1) Written Agreement. Upon written agreement of the parties, which must be signed by the defendant or all defendants, the court may continue the trial to a specified date. ((The agreement shall be effective when approved by the court on the record or in writing.))

(2) Motion by the Court or a Party. On motion of the ((State, the)) court or a party, the court may continue the ((case when)) trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be ((substantially)) prejudiced in the presentation of his or her defense. The motion must be filed ((on or)) before the ((date set for trial or the last day of any continuance or extension granted pursuant to this rule)) time for trial has expired. The court must state on the record or in writing the reasons for the continuance. The bringing of such motion by or on behalf of any party waives that party's objection to the requested delay.

(g) Cure Period. The court may continue the case beyond the limits specified in section (b) on motion of the court or a party made within five days after the time for trial has expired. Such a continuance may be granted only once in the case upon a finding on the record or in writing that the defendant will not be substantially prejudiced in the presentation of his or her defense. The period of delay shall be for no more than 14 days for a defendant detained in jail, or 28 days for a defendant not detained in jail, from the date that the continuance is granted. The court may direct the parties to remain in attendance or be on-call for trial assignment during the cure period.

(((i))) (h) Dismissal With Prejudice. A ((criminal)) charge not brought to trial within the time ((period provided by)) limit determined under this rule shall be dismissed with prejudice. The State shall provide notice of dismissal to the victim and at the court's discretion shall allow the victim to address the court regarding the impact of the crime. No case shall be dismissed for time-to-trial reasons except as expressly required by this rule, a statute, or the state or federal constitution.

(((j) Waiver. A defendant may waive his or her time for trial rights. A waiver shall be in writing and shall be signed by the defendant. The waiver shall be to a date certain beyond the current expiration date as calculated pursuant to this rule or for a period of days beyond the current expiration date.))

Purpose For Proposed Amendment to CrRLJ 2.2:

See the purpose statement for the proposed amendments to CrR 2.2 and 3.3, as well as the task force's final report (http://www.courts.wa.gov/committee/tft/).



CrRLJ 2.2

WARRANT OF ARREST OR SUMMONS UPON COMPLAINT



(a) Issuance of Warrant of Arrest.

(1) Generally. If a complaint is filed and if the offense charged may be tried in the jurisdiction in which the warrant issues, and if the sentence for the offense charged may include confinement in jail, the court may direct the clerk to issue a warrant for the arrest of the defendant unless the defendant has already been arrested in connection with the offense charged and is in custody or has been released on obligation to appear in court.

(2) Probable Cause. A warrant of arrest must be supported by an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant. Sworn testimony shall be recorded electronically or stenographically. The evidence shall be preserved. The court must determine there is probable cause to believe that the defendant has committed the crime alleged before issuing the warrant. The evidence shall be subject to constitutional limitations for probable cause determinations and may be hearsay in whole or in part.

(3) Ascertaining Defendant's Current Address.

(i) Search for Address. The court shall not issue a warrant unless it determines that the complainant has attempted to ascertain the defendant's current address by searching the following: (A) the District Court Information System database (DISCIS), (B) the driver's license and identicard database maintained by the Department of Licenses; and (C) the database maintained by the Department of Corrections listing persons incarcerated and under supervision. The court in its discretion may require that other databases be searched.

(ii) Exemptions from Address Search. The search required by subdivision (i) shall not be required if (A) the defendant has already appeared in court (in person or through counsel) after filing of the same case, (B) the defendant is known to be in custody, or (C) the defendant's name is unknown.

(iii) Effect of Erroneous Issuance. If a warrant is erroneously issued in violation of this subsection (a)(3), that error shall not affect the validity of the warrant.

(b) Issuance of Summons in Lieu of Warrant.

(1) Generally. If a complaint is filed, the court may direct the clerk to issue a summons commanding the defendant to appear before the court at a specified time and place.

(2) When Summons Must Issue. If the complaint charges the commission of a misdemeanor or a gross misdemeanor, the court shall direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent bodily harm to the accused or another, in which case it may issue a warrant.

(3) Summons for Felony Complaint. If the complaint charges the commission of a felony, the court may direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent bodily harm to the accused or another, in which case it may issue a warrant.

(4) Summons. A summons shall be in writing and in the name of the charging jurisdiction, shall be signed by the clerk with the title of that office, and shall state the date when issued. It shall state the name of the defendant and the nature of the charge, and shall summon the defendant to appear before the court at a stated time and place. The summons shall inform the defendant that failure to appear as commanded may result in the issuance of a warrant for the arrest of the accused.

(5) Failure To Appear on Summons. If a person fails to appear in response to a summons, or if delivery is not effected within a reasonable time, a warrant of arrest may issue, if the sentence for the offense charged may include confinement in jail.

(c) Requisites of a Warrant. The warrant shall be in writing and in the name of the charging jurisdiction, shall be signed by the judge or clerk with the title of that office, and shall state the date when issued. It shall specify the name of the defendant, or if his or her name is unknown, any name or description by which he or she can be identified with reasonable certainty. The warrant shall specify the offense charged against the defendant and that the court has found that probable cause exists to believe the defendant has committed the offense charged and shall command the defendant be arrested and brought forthwith before the court issuing the warrant. If the offense is not a capital offense, the court shall set forth in the order for the warrant, bail and/or other conditions of release.

(d) Execution; Service.

(1) Execution of Warrant. The warrant shall be directed to all peace officers in the state and shall be executed only by a peace officer.

(2) Delivery of Summons. The summons may be served any place within the state. It may be served by a peace officer, who shall deliver a copy of the same to the defendant personally, or it may be delivered by the court mailing the same, postage prepaid, to the defendant at his or her last known address.

(e) Return. The officer executing a warrant shall make return thereof to the court before whom the defendant is brought pursuant to these rules. At the request of the prosecuting authority any unexecuted warrant shall be returned to the issuing court to be canceled. The peace officer to whom a summons has been given for service shall, on or before the return date, file a return thereof with the court before whom the summons is returnable. For reasonable cause, the court may order that the warrant be returned to it.

(f) Defective Warrant or Summons.

(1) Amendment. No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any irregularity in the warrant or summons, but the warrant or summons may be amended so as to remedy any irregularity.

(2) Issuance of New Warrant or Summons. If during the preliminary examination of any person arrested under a warrant or appearing in response to a summons, it appears that the warrant or summons does not properly name or describe the defendant or the offense with which he or she is charged, or that although not guilty of the offense specified in the warrant or summons, there is reasonable ground to believe that he or she will be charged with some other offense, the judge shall not discharge or dismiss the defendant but may allow a new complaint to be filed and shall thereupon issue a new warrant or summons.

(g) Failure to Issue Warrant -- Dismissal. Upon five days' notice to the prosecuting attorney, the court shall dismiss a charge without prejudice if (i) 90 days have elapsed since the citation or complaint was filed and (ii) on the date that the order of dismissal is entered, no warrant has been issued and the defendant has not appeared in court.

Purpose For Proposed Amendment to CrRLJ 4.1:

See the purpose statements for the proposed amendments to CrR 4.1 and CrR 3.3, as well as the task force's final report (http://www.courts.wa.gov/committee/tft/).


CrRLJ 4.1

ARRAIGNMENT



(a) Procedures. After the complaint or the citation and notice has been filed, the defendant shall be arraigned thereon in open court.

(1) Time.

(i) The defendant shall be arraigned not later than 15 days after the date the complaint is filed in court, if the defendant is (A) detained in a county or city jail in the county where the charges are pending, or (B) subject to conditions of release imposed in connection with the same charges.

(ii) The defendant shall be arraigned not later than 15 days after that appearance which next follows the filing of the complaint or citation and notice, if the defendant is not detained in such jail or subject to such conditions of release. Any delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for the delay. For purposes of this rule, "appearance" has the meaning defined in CrRLJ 3.3 (a)(3)(iii).

(((1))) (2) Reading and Plea. Arraignment shall consist of reading the complaint or the citation and notice to the defendant or stating to him or her the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the complaint or the citation and notice before being called upon to plead, unless a copy has previously been supplied. The defendant shall not be required to plead to the complaint or the citation and notice until he or she shall have had a reasonable time to examine it and to consult with a lawyer, if requested.

(((2))) (3) Advisement. At arraignment, unless the defendant appears with a lawyer, the court shall advise the defendant on the record:

(i) of the right to trial by jury if applicable; and

(ii) of the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one.

(b) Objection to Arraignment Date -- Loss of Right to Object. A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment. That date shall constitute the arraignment date for purposes of CrRLJ 3.3. A party who fails to object as required shall lose the right to object, and the arraignment date shall be conclusively established as the date upon which the defendant was actually arraigned.

(((b))) (c) Waiver.

(1) Jury Trial. A waiver of jury trial at arraignment must be in writing and signed by the defendant. If the defendant waives a jury trial at arraignment, he or she must be advised of the right to withdraw the waiver and request a jury trial within 10 days of arraignment.

(2) Lawyer. If the defendant chooses to proceed without a lawyer, the court shall determine on the record that the waiver is made voluntarily, competently and with knowledge of the consequences. The defendant must be advised that waiver of a lawyer at arraignment does not preclude the defendant from asserting the right to a lawyer later in the proceedings.

(((c))) (d) Name. At arraignment, the court shall ask the defendant his or her true name. If the defendant's name has been incorrectly stated in the complaint or citation and notice, the court shall order the complaint or citation and notice to be corrected accordingly.

(((d))) (e) Appearance by Defendant's Lawyer. Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed.

(1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.

(2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.

(3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.

(4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.

(5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.

(6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.

Purpose For Proposed Amendment to JuCR 7.8:

See the purpose statement for the proposed amendment to CrR 3.3 and the task force's final report (http://www.courts.wa.gov/committee/tft/).


JuCR 7.8

TIME FOR ADJUDICATORY HEARING



(a) General Provisions.

(1) Responsibility of Court. It shall be the responsibility of the court to ((insure)) ensure an adjudicatory hearing in accordance with the provisions of this rule to each person charged with a juvenile offense ((an adjudicatory hearing in accordance with the provisions of this rule)).

(2) Definitions. For purposes of this rule:

(i) "Pending charge" means the charge for which the allowable time for trial is being computed.

(ii) "Related charge" means a charge based on the same conduct as the pending charge that is ultimately filed in juvenile court.

(iii) "Appearance" means the juvenile's physical presence in the court where the pending charge was filed. Such presence constitutes appearance only if (A) the prosecutor was notified of the presence and (B) the presence is contemporaneously noted on the record under the cause number of the pending charge.

(iv) "Arraignment" means the date determined under JuCR 7.6 and CrR 4.1(b).

(v) "Held in detention" means held in the custody of a detention facility pursuant to the pending charge. Such detention excludes any period in which a juvenile is on electronic home monitoring, is being held on an unrelated charge or hold, or is serving a sentence of confinement.

(3) Construction. The allowable time for the adjudicatory hearing shall be computed in accordance with this rule. If a hearing is timely under the language of this rule but was delayed by circumstances not addressed in this rule or JuCR 7.6, the pending charge shall not be dismissed unless the juvenile's constitutional right to a speedy trial was violated.

(4) Related Charges. The computation of the allowable time for the adjudicatory hearing on a pending charge shall apply equally to all related charges.

(5) Reporting of Dismissals and Untimely Hearings. The court shall report to the Administrative Office of the Courts, on a form determined by that office, any case in which

(i) the court dismissed a charge on a determination pursuant to section (h) that the charge had not been brought to hearing within the time limit required by this rule, or

(ii) the time limits would have been violated absent the cure period authorized by section (g).

(b) Time Limits for Adjudicatory Hearing.

(1) Juvenile Held in Detention. ((The adjudicatory hearing on a juvenile offense shall begin within 60 days following the juvenile's arraignment in juvenile court on the charges contained in the information. If the alleged juvenile offender is held in detention pending the adjudicatory hearing and would be at liberty but for the current charges, the hearing shall begin within 30 days following the juvenile's arraignment in juvenile court on the charges contained in the information.)) A juvenile who is held in detention shall be brought to hearing within the longer of

(i) 30 days after the commencement date specified in this rule, or

(ii) the time specified under subsection (b)(5).

(2) Juvenile Not Held in Detention. A juvenile who is not held in detention shall be brought to hearing within the longer of

(i) 60 days after the commencement date specified in this rule, or

(ii) the time specified in subsection (b)(5).

(3) Release of Juvenile. If a juvenile is released from detention before the 30 day time limit has expired, the limit shall be extended to 60 days.

(4) Return to Detention following Release. If a juvenile not held in detention at the time the hearing date was set but is subsequently returned to detention on the same or related charge, the 60-day limit shall continue to apply. If the juvenile is held in detention when the hearing is reset following a new commencement date, the 30-day limit shall apply.

(5) Allowable Time after Excluded Period. If any period of time is excluded pursuant to section (e), the allowable time for the adjudicatory hearing shall not expire earlier than 15 days after the end of that excluded period.

(((c) Setting of Hearing Date -- Notice to Parties -- Objection to Hearing Date -- Waiver. CrR 3.3(f) applies in juvenile court. The court shall notify the juvenile of the hearing date in accordance with CrR 3.3(f), and any party who objects to the hearing date must do so by motion within 10 days after the notice is mailed or otherwise given. The failure of a party to make a timely objection shall be a waiver of the objection to the hearing date.))

(c) Commencement date.

(1) Initial Commencement Date. The initial commencement date shall be the date of arraignment as determined under JuCR 7.6 and CrR 4.1.

(2) Resetting of Commencement Date. On occurrence of one of the following events, a new commencement date shall be established, and the elapsed time shall be reset to zero. If more than one of these events occurs, the commencement date shall be the latest of the dates specified in this subsection.

(i) Waiver. The filing of a written waiver of the juvenile's rights under this rule signed by the juvenile. The new commencement date shall be the date specified in the waiver, which shall not be earlier than the date on which the waiver was filed. If no date is specified, the commencement date shall be the date of the hearing contemporaneously or subsequently set by the court.

(ii) Failure to Appear. The failure of the juvenile to appear for any proceeding at which the juvenile's appearance was required. The new commencement date shall be the date of the juvenile's next appearance.

(iii) New Adjudicatory Hearing. The entry of an order granting a mistrial or new adjudicatory hearing or allowing the juvenile to withdraw a plea of guilty. The new commencement date shall be the date the order is entered.

(iv) Appellate Review or Stay. The acceptance of review or grant of a stay by an appellate court. The new commencement date shall be the date of the juvenile's appearance that next follows the receipt by the clerk of the juvenile court of the mandate or written order terminating review or stay.

(v) Collateral Proceeding. The entry of an order granting a new adjudicatory hearing pursuant to a person restraint petition, a habeas corpus proceeding, or a motion to vacate judgment. The new commencement date shall be the date of the juvenile's appearance that next follows either the expiration of the time to appeal such order or the receipt by the clerk of the juvenile court of notice of action terminating the collateral proceeding, whichever comes later.

(vi) Change of Venue. The entry of an order granting a change of venue. The new commencement date shall be the date of the order.

(vii) Disqualification of Counsel. The disqualification of the defense attorney or prosecuting attorney. The new commencement date shall be the date of the disqualification.

(d) Setting of Hearing Date -- Notice -- Objections -- Loss of Right to Object.

(1) Initial Setting of Hearing Date. The court shall, within 15 days of the juvenile's actual arraignment in juvenile court, set a date for the adjudicatory hearing which is within the time limits prescribed by this rule and notify counsel for each party of the date set. If a juvenile is not represented by counsel, the notice shall be given to the juvenile and may be mailed to the juvenile's last known address. The notice shall set forth the proper date of the juvenile's arraignment and the date set for the hearing.

(2) Resetting of Hearing Date. When the court determines that the hearing date should be reset for any reason, including but not limited to the applicability of a new commencement date pursuant to subsection (c)(2) or a period of exclusion pursuant to section (e), the court shall set a new date for the hearing which is within the time limits prescribed and notify each party of the date set.

(3) Objection to Hearing Date. A party who objects to the date set upon the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move that the court set an adjudicatory hearing within those time limits. Such motion shall be promptly noted for hearing by the moving party in accordance with local procedures. A party who fails, for any reason, to make such a motion shall lose the right to object that an adjudicatory hearing commenced on such a date is not within the time limits prescribed by this rule.

(4) Loss of Right to Object. If a hearing date is set outside the time allowed by this rule, but the defendant lost the right to object to that date pursuant to subsection (d)(3), that date shall be treated as the last allowable date for the adjudicatory hearing, subject to section (g). A later hearing date shall be timely only if the commencement date is reset pursuant to subsection (c)(2) or there is a subsequent excluded period pursuant to section (e) and subsection (b)(5).

(e) Excluded Periods. The following periods shall be excluded in computing the time for the adjudicatory hearing:

(1) Competency Proceedings. All proceedings related to the competency of the alleged juvenile ((offender)) to participate in the hearing on the pending charge, beginning on the date when the competency examination is ordered and terminating when the court enters a written order finding the juvenile to be competent.

(2) Proceedings on Unrelated Charges. ((Preliminary proceedings and an adjudicatory hearing on another charge.)) Arraignment, pre-adjudicatory hearing proceedings, adjudicatory hearing, and disposition hearing on an unrelated charge.

(3) Continuances. Delay granted by the court pursuant to section (((e))) (f).

(4) Period between Dismissal and Refiling. The time between the dismissal of a charge and the refiling of the same or related charge.

(5) Disposition of Related Charge. The period between the commencement of an adjudicatory hearing or the entry of a plea of guilty on one charge and the juvenile's arraignment in superior court on a related charge. ((The time between a motion for revision of a court commissioners ruling and the entry of a decision by a judge.))

(6) Juvenile Subject to Foreign or Federal Custody or Conditions. The time during which a juvenile is detained outside the state of Washington or in a federal facility and the time during which a juvenile is subject to conditions of release not imposed by a court of the State of Washington. ((The time required for determining the capacity of the juvenile offender.))

(7) Unavoidable or Unforeseen Circumstances. Unavoidable or unforeseen circumstances affecting the time for the adjudicatory hearing beyond the control of the court or of the parties. This exclusion also applies to the cure period of section (g).

(8) Motion for Revision. When a motion for revision of a court commissioner's ruling is filed, the time between the court commissioner's ruling and an order deciding the motion.

(9) Disqualification of Judge. A five-day period of time commencing with the disqualification of the judge to whom the case is assigned for the adjudicatory hearing.

(((e))) (f) Continuances. Continuances or other delays may be granted as follows:

(1) On motion of the alleged juvenile offender on a showing of good cause.

(2) On motion of the prosecuting attorney if:

(i) the alleged juvenile offender consents to a continuance or delay and good cause is shown; or

(ii) the States evidence is presently unavailable, the prosecution has exercised due-diligence, and there are reasonable grounds to believe that it will be available within a reasonable time; or

(iii) required in the due administration of justice and the alleged juvenile offender will not be substantially prejudiced in the presentation of his or her defense.

(3) The court on its own motion may continue the case when required in the due administration of justice and the alleged juvenile offender will not be substantially prejudiced in the presentation of his or her defense.))

(1) Written Agreement. Upon written agreement of the parties, which must be signed by the alleged juvenile offender or all the alleged offenders, the court may continue the hearing date to a specified date.

(2) Motion by the Court or a Party. On motion of the court or a party, the court may continue the hearing to a specified date when such continuance is required in the administration of justice and the juvenile will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for the adjudicatory hearing has expired. The court must state on the record or in writing the reasons for the continuance. The bringing of such motion by or on behalf of any party waives that party's objection to the requested delay.

(g) Cure Period. The court may continue the case beyond the limits specified in section (b) on motion of the court or a party made within five days after the time for the adjudicatory hearing has expired. Such a continuance may be granted only once in the case upon a finding on the record or in writing that the juvenile will not be substantially prejudiced in the presentation of his or her defense. The period of delay shall be for no more than 7 days for a juvenile who is held in detention, or 28 days for a juvenile not held in detention, from the date that the continuance is granted. The court may direct the parties to remain in attendance or be on-call for hearing assignment during the cure period.

(((f) Absence of Alleged Juvenile Offender. In the event the alleged juvenile offender is absent from the court and thereby unavailable for the adjudicatory hearing or for any preliminary proceeding at which his or her presence is required, the time period specified in section (b) shall start to accrue anew when the alleged juvenile offender is actually present in the county where the charge is pending, and his presence appears upon the record of the court.))

(((g))) (h) Dismissal With Prejudice. ((If the adjudicatory hearing on a juvenile offense is not held within the time limits in this rule, the information shall be dismissed with prejudice.)) A charge not brought to adjudicatory hearing within the time limit determined under this rule shall be dismissed with prejudice. The State shall provide notice of dismissal to the victim and at the court's discretion shall allow the victim to address the court regarding the impact of the crime. No case shall be dismissed for time-to-hearing reasons except as expressly required by this rule, a statute, or the state or federal constitution.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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