''Time for trial'' rights give the state 104-days to take you to trial or the case will be dismissed

As discussed in our previous post, the state only has so much time to prosecute a criminal defendant before the courts will dismiss a prosecution. The preceding post discussed the constitutional right to a ''speedy trial,'' but this section discusses the Court Rule's ''Time for Trial'' rights. If the state violated the Time for Trial rule, then a PRP could be filed to address the violation.

A criminal charge not brought to trial within the time limits of Criminal Rule (CrR) 3.3 ''shall'' be dismissed with prejudice. CrR 3.3(i); State v. Swenson, 150 Wn.2d 181, 187-88, 75 P.3d 513 (2003). If the defendant is in custody on the pending charge, they must be arraigned within 14-days of the Information being filed with the Superior Court. CrR 3.3(c)(1).

When a defendant makes a time for trial objection and there has been a delay between the Information being filed and the arraignment appearance, the court determines a ''constructive'' date of arraignment. State v. Striker, 87 Wn.2d 870, 871-72, 557 P.2d 847 (1976); see also State v. Greenwood, 120 Wn.2d 585, 599, 845 P.2d 971 (1993). Calculation of a constructive arraignment date creates a prima facie case that a Striker rule applies, and a constructive arraignment date is 14-days after the Information is filed with the trial court. CrR 3.3; Striker, 87 Wn.2d at 875. Unless the time is adjusted or the objection is waived, the trial must begin within 104-days from the filing of the Information (14-days from filing of charging document to arraignment plus 90-days for time for trial).

A defendant who objects to the date of arraignment because it is untimely must do so at the time of the arraignment. CrR 3.3(e). Failure to object is considered a waiver and the actual date of arraignment is used to calculate the time for trial deadline. Id. However, if the objection is timely, the constructive arraignment date, 14-days from the filing of the Information, is used to determine the time for trial deadline. CrR 3.3(c)(4), (e). The purpose of requiring an objection to the arraignment date at the actual arraignment is to notify the trial court of an alleged error and to allow the court to schedule a timely trial date, if possible. Greenwood, 120 Wn.2d at 606. If a defendant is arraigned after the time for trial has expired, they may later object because objection at the actual arraignment would not assist the court in remedying the error. Id.

Periods during which the prosecutor acts with good faith and due diligence in trying to bring a defendant before the court are excluded from the time for trial calculation. Greenwood, 120 Wn.2d at 604-05. Although the ''good faith and due diligence'' standard was adopted in interpreting a prior version of CrR 3.3, see State v. Peterson, 90 Wn.2d 423, 428, 585 P.2d 66 (1978), its validity continues because it is consistent with the purpose behind Striker, CrR 3.3, and the criminal rules as a whole. Greenwood, 120 Wn.2d at 600-01 (citing State v. Pachec State v. Pacheco, 107 Wn.2d 59, 65, 726 P.2d 981 (1986)). The rule ensures that defendants are brought to court in a timely manner, while allowing for unavoidable periods of delay that, if not taken into account, would put an extraordinary and unfair burden on the prosecution. Greenwood, 120 Wn.2d at 601 (citing State v. Miffitt, 56 Wn.App. 786, 792, 785 P.2d 850 (1990))@ see also State v. Huffmeyer, 145 Wn.2d 52, 62-63, 32 P.3d 996 (2001).

The trial court determines as a finding of fact whether the state has acted with good faith and due diligence in trying to bring an incarcerated defendant before the court. Swenson, 150 Wn.2d at 186; see also State v. Slanaker, 58 Wn.App. 161, 165-66, and n.3, 791 P.2d 575 (1990)(noting that the Supreme Court has stated that '''diligence is a fact and not a conclusion''' (quoting State v. Fackrell, 44 Wn.2d 874, 880, 271 P.2d 679 (1954), and citing State v. O'Brien, 66 Wash. 219, 224, 119 P. 609 (1911))). The determination of whether a defendant's time for trial deadline has passed requires an application of court rules to particular facts (one of the facts being whether the state acted in good faith and due diligence) and is reviewed de novo. State v. Anderson, 102 Wn.App. 405, 410, 9 P.3d 840 (2000); State v. Anderson, 84 Wn.App. 33, 35-36, 925 P.2d 635 (1996); State v. Tatum, 74 Wn.App. 81, 86, 871 P.2d 1123 (1994). If the court determines that the time for trial deadline has passed and the defendant's objection was properly raised, the court has no discretion in deciding whether to dismiss the charges. Swenson, 150 Wn.2d at 186-87. The charges ''shall'' be dismissed with prejudice. Id. at 187; Greenwood, 120 Wn.2d at 591.

When you first get charged in a criminal case, the State has 14-days to arraign you, and then 90-days thereafter to take you to trial. If the State tries to arraign you more than 14-days after the case is filed, you have to object at that time or your time for trial doesn't start on the right date and the prosecutor will just drag your case on and on and on. Assert your rights, or you don't have any.