May 1993
[No. 60187-9. Department Two. May 20, 1993.]
STATE v. DUGGINS
THE STATE OF WASHINGTON, Respondent, v. DEMECO M. DUGGINS, Petitioner.
[1] Juveniles – Juvenile Justice – Time of Trial – Continuance – Within Speedy Trial Period – Effect. The dismissal of charges against a juvenile defendant on the basis that the trial court erred in granting a continuance to the State is not warranted under JuCR 7.8 if trial is held within the time for trial period set forth in that rule.
[2] Juveniles – Juvenile Justice – Time of Trial – Continuance – Due Diligence – Subpoenas – Methods in Court Rule. The State cannot show "due diligence" for purposes of JuCR 7.8, under which the State may be granted a continuance for unavailability of evidence if due diligence is exercised, when the absence of a State's witness results from a failure to serve notice of a subpoena by one of the methods set forth in CR 45(c). [Dictum.]
Nature of Action: Prosecution of a juvenile for possession of a controlled substance with intent to deliver.
Superior Court: After granting a 2-day continuance of the fact-finding hearing based on the absence of a state witness who had been subpoenaed but not served personally, the Superior Court for King County, No. 91-8-03164-1, Terrence A. Carroll, J., entered an adjudication of guilty on August 23, 1991.
Court of Appeals: The court affirmed the judgment at 68 Wn. App. 396, holding that the trial court did not abuse its discretion by granting the continuance within the time for trial period.
Supreme Court: Holding that the trial was held within the time for trial period as established by court rule, the court affirms the Court of Appeals and the judgment.
Jessica Ryan of Washington Appellate Defender Association, for petitioner.
Norm Maleng, Prosecuting Attorney, and Sally Olsen, Deputy, for respondent.
PER CURIAM. – Demeco Duggins seeks review of a Court of Appeals decision affirming his juvenile conviction for possession of cocaine with intent to deliver. Duggins contends the trial court should not have granted a continuance to the State when its witness failed to appear, because the witness was not personally served with a subpoena. Even after the continuance, however, Duggins was tried within the speedy trial period specified by JuCR 7.8. The Court of Appeals therefore found no reversible error.
[1] We agree that because Duggins was tried within the speedy trial period defined by JuCR 7.8 there is no basis for dismissing the prosecution under that rule. This holding is all that is necessary to affirm Duggins' conviction.
[2] Nonetheless, the Court of Appeals went on to say alternatively that the prosecutor had acted with due diligence by mailing a subpoena to the law enforcement witness, even though the witness did not receive the subpoena. The court's discussion could be misleading to the extent it fails to give proper weight to State v. Adamski, 111 Wn.2d 574, 761 P.2d 621 (1988). As this court held in Adamski, when lack of notice of a subpoena results in the absence of a State's witness, the State cannot show due diligence, for purposes of JuCR 7.8, unless the subpoena was served by one of the methods described in CR 45(c).
Duggins' conviction is affirmed.