State v. Shong-Ching Tong

Roe, J. Defendant Shong-Ching Tong appeals the dismissal of his Superior Court appeal of a district court conviction for speeding. The pertinent facts may be summarized as follows: A citation was issued to the defendant on May 13, 1978, charging him with speeding. He was arraigned May 19, 1978, pleaded not guilty, but was found guilty, and fined $10. At that time, he gave an oral notice of appeal. An appeal bond of $100 was set and posted. Defendant filed a written notice of appeal on May 31. On that date, the district court transcript was certified to Superior Court and defendant was so notified by certified mail, return receipt requested.1 On June 1, the transcript was filed with the Superior Court. Thereafter, the defendant took no action to set his appeal for trial. Fifty-seven days later, or on July 28, the prosecutor moved to dismiss. The motion to dismiss was heard on August 7 and a dismissal was entered. Relying on RAP 5.4(2), the defendant contends it was the duty of the Superior Court for Walla Walla County to schedule a trial date and place, and by failing to do so the Superior Court exercised the power of pocket veto. Thus, dismissal was unreasonable. We disagree. [888] The instant matter is not controlled by the Rules of Appellate Procedure cited above, which are applicable only to appeals courts and not superior court. Justice Court Criminal Rules control, particularly JCrR 6.01(e), which provides: Within 20 days after the transcript is filed, appellant shall note the case for trial and otherwise diligently prosecute the appeal. JCrR 6.03(b) provides: Where the cause has not been noted for trial within 20 days after filing of the transcript, the superior court clerk shall forthwith note the appeal for dismissal for want of prosecution. If, after a hearing, it is determined that appellant has not met time requirements, the cause shall be dismissed. In State v. Gregory, 74 Wn.2d 696, 698, 446 P.2d 191 (1968), the dismissal of two appeals from justice court was affirmed for noncompliance with the predecessor rule, JCrR 6.03, which provided: If the appellant fails to proceed with the appeal within the time and manner herein provided, the superior court shall upon motion of the respondent dismiss the appeal if the transcript has .been there filed, otherwise, the lower court shall do so. The Supreme Court further stated at page 698, quoting Port Angeles v. Dustin, 73 Wn.2d 712, 440 P.2d 420 (1968): These rules are mandatory, as are the statutes from which the language was taken. The burden of complying with them is clearly upon the appellant. Seattle v. Reed, 6 Wn.2d 186, 107 P.2d 239 (1940); State v. Ladiges, 63 Wn.2d 230, 386 P.2d 416 (1963); Orting v. Rucshner, 66 Wn.2d 732, 404 P.2d 983 (1965); Seattle v. Buerkman, 67 Wn.2d 537, 408 P.2d 258 (1965). Just last term in a case in Division Three of this court, State v. Cline, 21 Wn. App. 720, 586 P.2d 545 (1978), the prosecutor moved for a dismissal 43 days (as opposed to the 57 days in the instant case) after the district court transcript was filed in superior court pursuant to the above rules. Finding no excusable neglect, this court, including [889] the author of the dissent, followed the rule and dismissed. We are bound by these decisions. Nothing in the record shows that the defendant diligently prosecuted the appeal. In fact, his theory on appeal demonstrates the contrary. As a result, this case is distinguishable from both Goldendale v. Graves, 14 Wn. App. 925, 546 P.2d 462 (1976), aff'd on other grounds, 88 Wn.2d 417, 562 P.2d 1272 (1977); and State v. Berg's Economy Sales & Serv., 20 Wn. App. 904, 582 P.2d 912 (1978). The appellant did nothing to perfect his appeal. Certainly, since he was the moving party, he could expect that more was required from him than that. He, at least, could have inquired what action he should have taken. Many of the problems encountered in the area of noting a district court appeal for trial could be solved if, as a matter of courtesy, the district court judge or clerk would advise appellant that it is his duty to note the matter for trial in the superior court within 20 days after the district court transcript is filed in that court. This information could easily be made part of the notice of filing that the district court is required to give appellant pursuant to JCrR 6.01(d). There is nothing unusual in courts giving this ministerial advice. It is done by superior courts in criminal appeals, and in Department of Labor and Industries cases and other administrative hearings. The author of the dissent apparently believes the rule requiring dismissal here is wrong. It may be; however, the Supreme Court adopted the rule, has enforced it by decisions, and only the Supreme Court can change it. We, the majority, feel constrained by the rules, as we are. So was the Superior Court; it should be affirmed when it follows the rules, even though appellate judges might possibly believe the rule to be unwise or even unjust. The intolerable alternative is each judge's subjective view of justice and appropriate rules deciding cases. The dissenter's unhappiness with the current rule was recently reflected in the opinion in Goldendale v. Graves, [890] supra, in which another judge concurred as to the result only with the remaining judge dissenting, citing cases. That appeals court result was affirmed on other grounds by the Supreme Court. According to the rules, the dismissal of the appeal must be and is affirmed. Green, C.J., concurs. Footnotes [1] Since neither party brought the district court notice before this court as part of the clerk's papers, we requested same from the district court.