State Of Washington, Respondent V Jeffrey S. Moore And Mario Gadea-rivas, Appellants (Majority)

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FILED R 0T OF APPEALS 20130E 0 Ai P61 DF-PU IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 42707 -9 -II Respondent, AIM Consolidated with JEFFREY S. MOORE, No. 42715 -0 -II STATE OF WASHINGTON, Respondent, V. PUBLISHED OPINION MARIO GADEA- RIVAS, HUNT, J. Jeffrey S. Moore and Mario Gadea Rivas appeal the superior court' s affirmance of the district court' s denial of their motions to dismiss their driving under the influence ( DUI) charges for failure to comply with CrRLJ 3. 3 time for trial rules. Both argue that the superior court erred in ruling ( 1) that the district court' s failure to set a timely trial date was cured under the time within CrRLJ 3. 3( he must a)( 4); and ( 2) that Moore' s failure to appear at motion hearings reset have been brought to trial under CrRLJ 3. 3. 1 Holding that failure to set 1 Moore also assigns error to the superior court' s ruling that his attorney had an ethical duty to notify him of court hearings under the Washington Rules of Professional Conduct. 5 SH1l'4G' 0, S1 STATE OF WASHINGTON, 8: Consolidated Nos. 42707 -9 -II and 42715 -0 -11 trial within the time limits of CrRLJ 3. 3 requires dismissal, we reverse the superior court and remand to the district court to dismiss these charges with prejudice. FACTS Both Jeffrey S. Moore and Mario Gadea -Rivas were arrested for driving under the influence of alcohol in 2009, a violation of former RCW 46. 61. 502 ( 2008). Moore submitted to a breathalyzer test.2 1. DISTRICT COURT A. Moore Moore, who was out of custody, was arraigned in district court on May 11, 2009; the court scheduled a pretrial hearing for June 11. The next few months involved several pretrial hearing reschedulings and Moore' s multiple waivers of his time for trial rights under CrRLJ 3. 3. On July 2, 2009, Moore filed his first waiver of his time for trial rights, effective through December 1, 2009; at the October 6 pretrial hearing, the district court set his trial for November 30 but later cancelled it without setting a new trial date. Thus, when Moore filed his last time for trial waiver at the May 24, 2010 pretrial hearing, the district court had not set a trial date. Docket entries reflect that Moore was present with his attorney for some, but not all, of the numerous hearings and scheduling conferences leading up to this May 24 pretrial hearing. The State never objected to Moore' s absence from hearings he did not attend. And the district 2 The record before us does not specifically reflect that Gadea -Rivas also submitted to a breathalyzer test. Nevertheless, we infer from his motion to suppress that this was the case. This fact, however, is not relevant to the time for trial issues in the instant appeal. 2 Consolidated Nos. 42707 -9 -II and 42715 -0 -II court neither issued any bench warrants for Moore' s " failure to appear" nor otherwise required his presence. On May 14, ten days before his May 24 pretrial hearing, Moore filed a second motion to suppress part of the joint " Vosk approximately 114 defendants 43. Uncertainty and multiple Motion" ( defense Vosk Motion) to suppress brought by attorneys. Clerk' s Papers ( CP) ( Moore) at Moore and his counsel were present for the May 24 pretrial hearing, at which the district court scheduled the Vosk Motion hearing ( including Moore' s second motion to suppress) for June 25. Also on May 24, Moore filed his fourth and final time for trial waiver, resetting his commencement date to June 1 his and expiration date 90 days later, on September 1. 3 Apparently expecting that the Vosk Motion would be resolved before this September 1 expiration date, the district court did not set a new trial date for Moore. On June 2, 2010, the district court accepted Moore' s waiver of his right to appear at the. Vosk Motion hearings until hearing. The court' s docket reflects that Moore was not present at any additional his February 17, 2011 pretrial hearing. Again, the record includes no orders requiring Moore' s presence at these interim hearings or any bench warrants for his failures to appear. Instead, the district court sent notices of continued Vosk Motion hearing dates to only 3 The record before us on appeal shows that Moore filed his last time for trial waiver on May 24, 2010, which reset his commencement date to June 1, 2010, and reset his 90 -day time for trial expiration date to September 1, 2010. unclear about the expiration of Moore' s We note, however, that other parts of the record are last time for trial waiver: ( 1) The court docket says that Moore " WAIVES SPEEDY TRIAL TO SEPTEMBER 1, 2010," CP ( Moore) at 10; ( 2) in his district court motion to dismiss, Moore argued that he had " extended his speedy trial time limit to December 10, 2010," superior court, Moore CP ( Moore) stated at that " he 31; ( 3) in his Application for Writ of Prohibition to the speedy trial through December 1, waived 2010," CP Moore) at 39; and ( 4) Moore' s counsel listed December 1 and December 10 deadlines in his brief, the bases for which are not clear. 3 Consolidated Nos. 42707 -9 -II and 42715 -0 -II the defense attorneys, not to the defendants themselves. Thus, the district court sent notice to only the defense attorneys when it bifurcated the Vosk Motion hearing, set defense arguments for June 25, and set the State' s arguments 40 days later. On June 15, the State moved to continue the Vosk Motion; the district court scheduled a hearing on this continuance motion for August 27. Moore was not present at the August 27 hearing, at which ( 1) the district court granted the State' s request to continue the Vosk Motion hearing and set another status hearing in Moore' s case for September 24; ( 2) Moore' s counsel did not object to resetting the status hearing beyond the September 1 time for trial expiration date; ( 3) Moore did not again waive his time for trial; and ( 4) the district court did not reset Moore' s trial date to commence before the existing September 1 expiration date. A month later, at Moore' s September 24 status hearing, the district court reset the Vosk Motion hearing for November 5. The record does not show that Moore' s defense counsel objected to this hearing date, which was beyond the expiration of Moore' s last time for trial expiration district date, September 1. court did Vosk Motion Moore' s not set a new Again, Moore filed no additional time for trial waiver, and the trial date. On October 27, the State again moved to continue the hearing. At a November 3 teleconference hearing on this continuance motion, counsel raised general concerns about " speedy trial" rights for all defendants 4, nevertheless, the district court granted the State' s requested continuance and set the Vosk Motion 4 Moore' s defense counsel declared that he had filed a written objection to Moore' s trial continuance from November 5 to December 13, but only in the lead case on the Vosk Motion, State v. Gunderson, 8Y6054725. See CP at 45, n. separate objection in his case. V 1. The record does not show that Moore filed a Consolidated Nos. 42707 -9 -II and 42715 -0 -II hearing for December 13, again without setting a new trial date for Moore.. CP ( Moore) at 45. Neither Moore, nor his counsel, was present for the December 13 Vosk Motion hearing. On January 20, 2011, the district court denied the Vosk Motion as to all the defendants. The next it issued day, a notice setting Moore' s pretrial hearing for February 17. Both Moore and his counsel appeared at this February 17 pretrial hearing, at which Moore ( 1) orally moved to dismiss the DUI dates outside charge because his time for trial had the existing time for trial deadlines. 5; expired and ( 2) objected to setting trial The next month, at a March 29 pretrial hearing, Moore filed a written motion to dismiss for failure to bring him to trial within the time for trial rules. On April 1, the district court set an April 21 hearing on Moore' s motion to dismiss and trial set a new date for May 18. The district court granted the State' s motion to continue the April 21 motion hearing until May 5; at the May 5 hearing, the district court denied Moore' s motion to dismiss. B. Mario Gadea Rivas Mario Gadea -Rivas was arraigned, out of custody, in district court on December 2, 2009. Over the course of multiple pretrial hearings, he waived his time for trial several times. His fourth and last waiver expired December 31, 2010. 5 As promised, Moore followed up with a written motion, which stated that his time for trial had expired on December 1, December 10, in the before or December 31, 2010. These dates differ from Moore' s See Spindle ( Moore) ( District Court Speedy Trial reflecting that Moore' s first speedy trial waiver expired December 1, 2009, second Waiver expired February 18, 2010, third waiver expired June 1, 2010, and fourth waiver expired waivers record us on appeal. Waivers) ( September 1, 2010). See also n.3, supra. E Consolidated Nos. 42707 -9 -II and 42715 -0 -II On May 14, 2010, Gadea -Rivas filed a motion to suppress the results of his breathalyzer test. The district Gadea -Rivas on court combined waived his presence his motion to suppress with the Vosk Motion. for the Vosk Motion hearings. the Vosk Motion for November 3, then rescheduled Like Moore, The district court set a hearing it to December 13. 6 On January 20, 2011, the district court denied the Vosk Motion. At Gadea -Rivas' pretrial hearing on February 1, the district court set his trial for February 28. On February 7, Gadea -Rivas filed a motion to dismiss his DUI charge because the trial date violated the CrRLJ 3. 3 time for trial rule. At a February 22 hearing, the district court denied Gadea- Rivas' motion. II. APPEALS Both Moore and Gadea -Rivas appealed to superior court under the Rules for Appeal of Decisions of Courts of Limited Jurisdiction ( RALJ). The superior court consolidated their appeals and denied them both. 6 Gadea -Rivas' counsel appeared at the December 13 hearing; but he did not object when the district court announced it would issue its ruling on the Vosk Motion in January ( after GadeaRivas' last time for trial waiver would expire). 7 The superior court also denied Moore' s and Gadea- Rivas' applications for writ of prohibition and mandamus on two grounds:. ( 1) Any failure to comply with time for trial rules was cured which excuses delay when the trial was timely but " delayed by under CrRLJ 33( a)( 4), circumstances not addressed" in CrRLJ 3. 3 or 4. 1, such as the large Vosk Motion; and ( 2) both commencement dates reset when they failed to appear for the June 24, 2010 status hearing and began anew only when they appeared for the Gadea- Rivas' trial date was timely. 0 February 1, 2011 pretrial hearings, such that Consolidated Nos. 42707 -9 -II and 42715 -0 -II Moore and Gadea - ivas separately sought discretionary review of the superior court' s R denial under of their appeals. 8 RAP 2. 3( d)( 3) Our court commissioner granted both motions for discretionary review and consolidated them. ANALYSIS Moore and Gadea - ivas both argue that the superior court erred in ruling that ( 1) the R district court' s failure to set their trial dates within CrRLJ 3. 3' s time for trial rule was cured under time CrRLJ 3. 3( a)( within which 4); they and ( 2) their failure to appear at hearings after May 24, 2010, reset the must be brought to trial. Moore separately argues that the superior court erred in ruling that, under the Washington Rules of Professional Conduct, his trial counsel had an ethical to notify him duty about court We agree with the first and second arguments; hearings. because we reverse the superior court on these grounds, we do not reach Moore' s third argument. I. STANDARDS OF REVIEW We review a district court' s decision according to the Ford, 110 Wn.2d 827, 829, 755 P. 2d 806 ( 1988). we review factual issues for standards in RALJ 9. 1. State v. We review the record before the district court; substantial evidence, and we review legal issues de novo. City of Bellevue v. Jacke, 96 Wn. App. 209, 211, 978 P. 2d 1116 ( 1999). CrRLJ 3. 3 governs the time for trial in criminal cases in courts of limited jurisdiction. In reviewing a time for trial ruling in a district court case, we may consider authority citing the superior court time for trial rule, CrR 3. 3, because the CrR 3. 3 language is identical in all 8 Our commissioner granted discretionary review because " the paucity of decisions examining the breadth interpretation address." of of a defendant' s CrRLJ 3. 3( c)( waiver 2)( ii)[,] Spindle ( Moore) ( Ruling of his presence in court, [ and] the superior court' s is an issue of public interest that this court should Granting Review and Consolidating Appeals at 5 -6). 7 Consolidated Nos. 42707 -9 -II and 42715 -0 -II citing State for trial v. rule to see A trial court' s application of the time Mack, 89 Wn.2d 788, 576 P. 2d 44 ( 1978)). a particular set of Chavez -Romero, 170 Wn. 2013); State v. Chhom, 162 Wn.2d 451, 460, 173 P. 3d 234 ( 2007) to CrRLJ 3. 3. material respects also State v. App. facts is a question of law, which we review 568, 577, 285 P. 3d 195 ( 2012), de novo. State v. review denied, 176 Wn.2d 1023 Kindsvogel, 149 Wn.2d 477, 480, 69 P. 3d 870 ( 2003). " Failure to strictly comply with CrR 3. 3 requires dismissal, whether or not the defendant can show prejudice." State v. Tolles, 174 Wn. 819, 823, 301 P. 3d 60 ( 2013) ( App. citing State v. Raschka, 124 Wn. App. 103, 112, 100 P. 3d 339 ( 2004)). We treat a trial court' s unchallenged findings of fact on a CrR 3. 3 motion to dismiss as verities court' s on appeal. denial of Tolles, 174 Wn. a motion to App. dismiss for at 823. violation of We review for abuse of discretion a trial the applicable time for trial rule. Chavez- Romero, 170 Wn. App. at 577 ( citing City of Seattle v. Guay, 150 Wn.2d 288, 295, 76 P. 3d 231 2003)). We may affirm the trial court' s ruling on any grounds the record supports, including those the trial court did not explicitly articulate. State v. Ginn, 128 Wn. App. 872, 884 n.9, -117 P. 3d 1155 ( 2005). II. TIME FOR TRIAL CrRLJ 3. 3 establishes the time within which the State must bring a defendant to trial in district court. Under CrRLJ 3. 3( b), the State must bring a defendant to trial within 60 days of his commencement date" if he is detained in jail and within 90 days if he is not detained in jail. CrRLJ 3. 3( accordance a)( 1) expressly with this rule provides, " to It shall be the responsibility of the court to ensure a trial in each person charged with a crime." And if "[a] charge [ is] not Consolidated Nos. 42707 -9 -II and 42715 -0 -II brought to trial prejudice." within the time appear " a c)( this rule," the court must dismiss it " with 2)( ii), a defendant' s commencement date resets when he or she fails for any proceeding commencement requires under CrRLJ 3. 3( h). Under CrRLJ 3. 3( to limit determined date defendant' shall at be the date s presence " the which defendant' s the defendant' of presence s next was required. appearance." The new CrRLJ 3. 4( a) at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown." FERETOM6711 Moore' CrRLJ 3. 3( c)( s 1). initial commencement date was the date of his arraignment, May 11, 2009. Because Moore was out of custody following his arrest and arraignment, the State had 90 days to bring him to trial. CrRLJ 3. 3( b)( 2)( i). Moore' s commencement date reset every time he filed a written waiver of the time for trial rule and any time he failed to appear " for any proceeding at which [ his] presence was required." CrRLJ 3. 3( c)( 2)( i) and ( ii). After each such reset of the commencement date, the State again had 90 days within which to bring Moore to trial. See CrRLJ 3. 3( b)( 2)( i) and 3. 3( c)( 2). Moore signed his fourth and last such waiver on May 24, 2010, with a June 1 commencement date, which reset his time for trial expiration to September 1, 2010. to Consolidated Nos. 42707 -9 -II and 42715 -0 -II 1. Calculation of new May 18, 2011 trial date On March 29, 2011, Moore filed his written motion to dismiss for failure to bring him to trial within the time for trial rules. The district court set a new trial date for May 18, 9 reasoning that Moore had failed to appear for any hearings between May 24, 2010, and February 17, 2011, and, therefore, had waived his time for trial 10 rights. The record, however, does not reflect that either the court rules or the district court required Moore' s presence at the status hearings and continuance hearings between May 24, 2010, and February 17, 2011. For example, there are no court orders specifically requiring Moore to appear for these hearings. Similarly, CrRLJ 3. 4, which governs a criminal defendant' s presence in courts of limited. jurisdiction, provides: 9 The record does not reflect whether Moore orally reasserted his time for trial objection after the district court set the May 18 trial date. In our view, however, such an oral motion would have been superfluous because, by that point, Moore had already filed a written motion to dismiss for failure to comply with the time for trial rules; this motion served as an effective written objection for purposes of CrRLJ 3. 3( d)( 3). See Chavez -Romero, 170 Wn. App. at 582 ( citing State v. George, 160 Wn.2d 727, 158 P. 3d 1169 ( 2007)). to More specifically, the district court ruled that, because Moore was excused from only the Vosk Motion hearing, but not from any status conferences or continuance hearings, under CrRLJ 3. 3( c)( 2)( ii), (1) he waived his right under the time for trial rules when he failed to appear for the status and continuance hearings; ( 2) this waiver reset his commencement date to zero, such that his time for trial began to run anew only when Moore reappeared for the February 17, 2011 hearing; and ( 3) thus, the May 18, 2011 trial date was timely because it was within 90 days of Moore' s new February 17 commencement date. The district court docket confirms that Moore was not present for seven status and continuance hearings between May 24, 2010, and February 17, 2011. But there is no evidence in the record showing that any other defendants were present at these hearings or that their presence had been required. Nor does the record show that the district court issued bench warrants for any absent" Vosk Motion defendants or, at any point in the proceedings, expressed concern about their absence. 10 Consolidated Nos. 42707 -9 -II and 42715 -0 -II The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown. CrRLJ 3. 4( a). is appearance Because "[ a] status conference is not a hearing at which [ a criminal defendant' s] required under CrR 3. 4( a)," Raschka, 124 Wn. App. at 109 ( emphasis added), a status conference is not a hearing at which a criminal defendant' s appearance is generally CrRLJ 3. 4. required under 24, 2010, hearings ( February and not See Chhom, 162 Wn.2d at 46011. Because the hearings between May 17, 2011, arraignments, stages were merely status conference and continuance motion of trial, or impositions of sentence), CrRLJ 3. 4( a) did not require Moore' s presence. In State v. Branstetter, 85 Wn. Wn.2d 1011 ( 1997), required further for more noted, of hearings than those however, that this s presence not extend to include 123, 127 -28, 935 P. 2d 620, review denied, 132 Division One of our court clarified that a defendant' s presence may be types defendant' App. is required." rule " specified in the analogous CrR 3. 4( a). The court is not an exhaustive list of the proceedings at which a Branstetter, 85 Wn. status and continuance within App. at this category. 128 n. l. But Branstetter does At a minimum, there must be a " court rule or court order" requiring a defendant' s presence at a hearing in order for his or her absence to reset the time for trial. Branstetter, 85 Wn. App. at 128. According to the Branstetter court, the " clear intent" behind CrR 3. 4 was that the commencement period reset when a 11 CrRLJ 3. 4 is identical in all material respects to CrR 3. 4; thus, we may apply authority interpreting CrR 3. 4 to CrRLJ 3. 4. Chhom, 162 Wn.2d at 460. 11 Consolidated Nos. 42707 -9 -II and 42715 -0 -II defendant' s absence from a hearing "` prevents the case from proceeding."' 85 Wn. App. at 128- 29 ( quoting State v. Johnson, 56 Wn. App. 333, 338, 783 P. 2d 623 ( 1989)). The State cites no authority, court rule, or district court order to support its proposition that Moore was required to appear for these status conference and continuance motion hearings. Nor has the State made any showing that Moore' s absence from these hearings prevented the case of from proceeding. In contrast, Moore argues that ( 1) he was not required to appear for any these hearings between 24, 2010, May and February 17, 2011; ( 2) the only hearing at which his presence was originally required was the Vosk suppression motion hearing, for which he filed a waiver of appearance that the district court accepted; ( 3) he did not violate CrRLJ 3. 3( c)( 2)( ii) because the hearings at which he-did not appear did not require his presence; and ( 4) consequently, contrary to the district court' s ruling, his time for trial commencement date did not reset on those occasions. We hold that the district court erred in treating Moore' s absences from those hearings as waivers of the time for trial rule and in resetting his commencement date for purposes of calculating a new trial expiration date under CrRLJ 3. 3( c)( 2)( ii). Therefore, setting his trial date for May 18, 2011, well beyond the expiration of Moore' s last time for trial waiver to September 1, 2010, violated CrRLJ 3. 3( b)( 2)( i). 12 12 We acknowledge that the district court and both parties took great care in the early pretrial proceedings to assure that Moore executed a waiver for every continuance and that any new trial date was set before expiration of any existing time for trial date. We further note that the unusual joint Vosk Motion, involving more than 100 different defendants, created a special management circumstance for the trial court and that both parties and the court had reasonable grounds to delay the various defendants' trial until this diapositive motion to suppress critical evidence could be resolved. 12 Consolidated Nos. 42707 -9 -II and 42715 -0 -II 2. Circumstances not addressed by CrRLJ 3. 3( a)( 4) On direct appeal, the superior court upheld the district court' s denial of Moore' s motion to dismiss on the additional ground that Moore' s trial had been timely under CrRLJ 3. 3( a)( 4) because ( 1) it had been " delayed by circumstances not addressed" in CrRLJ 3. 3 or 4. 1 ( namely, the Vosk Motion); and ( 2) Moore' s pretrial proceedings were lengthy primarily because he had sought to suppress his breath test results through the Vosk Motion, which involved over 100 other defendants. The superior court agreed with the district court that Moore' s failure to appear at the hearings between May 24, 2010, and February 17, 2011, had reset his commencement date; the superior court also ruled that any violation of the time for trial rules was cured by CrRLJ 33( a)( 4). We disagree. The parties and the district court extended the time for trial date with successive waivers on multiple occasions leading up to the district court' s denial of the Vosk Motion in January 2011. That the State and district court failed to obtain another waiver and to reset Moore' s trial date again, before expiration of his last waiver on September 1, 2010, does not excuse the failure to bring him to trial in a timely manner as the rules require. 13 Nonetheless, these initial conscientious efforts to ensure a timely trial for Moore should have persisted, especially in light of the repeatedly continued Vosk Motion hearing. Because we hold that the district court failed to bring Moore to trial in compliance with CrRLJ 3. 3, we need not address his other arguments about lack of notice or violation of his constitutional speedy trial right. Gadea Rivas does not similarly argue that the district court violated his constitutional right to a speedy trial. 13 See, e. g., CrRLJ 3. 3( b)( 2) ( requiring the district court to bring an out -of-custody defendant to trial within 90 days of his or her commencement date). 13 0 Consolidated Nos. 42707 -9 -I1 and 42715 -0 -II B. Mario Gadea Rivas Gadea Rivas was arraigned on December 2, 2009, his initial commencement date under CrRLJ 3. 3( trial. c)( 1). Like Moore, he was not in custody; thus, the State had 90 days to bring him to CrRLJ 3. 3( b)( 2)( i). The district court set a pretrial conference on April 22, 2010. Gadea- Rivas waived his time for trial rights several times, with his last waiver being through December 31, 2010: On February 1, 2011, Gadea -Rivas appeared with counsel for a pretrial hearing, at which the district court set a trial date for February 28, 59 days after his last waiver had expired. On February 1, Gadea -Rivas timely objected that this February 28 trial date was beyond the 90 days permitted by the time for trial rules; six days later, he filed a written motion to dismiss on the same grounds. The district court denied Gadea Rivas' motion to dismiss. 1. " As to appear" date to with Moore, the district Failure to appear" court and the superior court ruled that Gadea- Rivas' " failure at hearings between May 24, 2010, and February 1, 2011, reset his commencement zero. Verbatim Report of Proceedings ( VRP) at 49. As we note above, nothing in the applicable rules requires a defendant to appear at a status hearing or a hearing on a motion to continue. Neither the State nor the district court cited any authority below for the proposition that Gadea Rivas was required to appear for these hearings. Furthermore, the record does not show that the district court specifically ordered Gadea- Rivas to appear for any missed status or continuance hearing, for which Washington caselaw 14 Consolidated Nos. 42707 -9 -II and 42715 -0 -II does and defendant' not require a the s presence under CrR 3. 4( a). 14 Consequently, both the district court in ruling that Gadea Rivas' " failure to superior court erred appear" for the status and continuance hearings reset his commencement date for purposes of calculating a timely trial date. 2. Circumstances not addressed by CrRLJ 3. 3 or 4. 1 As with Moore, the superior court similarly ruled that ( 1) because Gadea- Rivas' trial had been "` delayed which he motion by sought circumstances ... to suppress to dismiss, VRP at not addressed "' his breath test results), 47 -48 ( quoting CrRLJ 3. 3( in CrRLJ 3. 3 or 4. 1 ( the Vosk Motion, in the district court had properly denied his a)( Rivas' " failure to appear" 4)); ( 2) Gadea - at the hearings between May 24, 2010, and February 1, 2011, reset his commencement date; and 3) any violation of the time for trial rules was cured by CrRLJ 3. 3( a)( 4). See VRP at 51. Again, we disagree. As was the case with Moore, the parties and the district court extended the time for trial expiration date with Gadea Rivas' successive waivers on multiple occasions. That they failed to do so this one last time does not excuse the failure to bring Gadea -Rivas to trial in a timely manner as the rules require. We hold, therefore, that CrRLJ 3. 3( h) requires us to remand to the district court with instructions to dismiss the charges against both defendants with prejudice. Accordingly, we reverse the superior court' s affirmance of the district court' s denial of their motions to dismiss 14 See, e. criminal g., Raschka, 124 Wn. App. at 109. " defendant' s] appearance is required A status conference is not a hearing at which [ a CrR 3. 4( a)." In reviewing a time - -rial for t under ruling in a district court case, we may consider authority citing the superior court time - for trial rule, CrR 3. 3, because the CrR 3. 3 language is identical in all material respects to CrRLJ 3. 3. Chhom, 162 Wn.2d at 460 ( citing Mack, 89 Wn.2d 788). 15 Consolidated Nos. 42707 -9 -II and 42715 - -II 0 their driving under the influence (DUI) charges and remand to the district court to dismiss these charges with prejudice. r r Hunt, J. lviaxa, i. 16

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