STATE v. GREEN, 50726-5-I (Wash.App. 4-28-2003)

No. 50726-5-IThe Court of Appeals of Washington, Division One.
Filed: April 28, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 01-1-09877-9 Judgment or order under review Date filed: 07/01/2002

Counsel for Appellant(s), Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Scott Michael O’Toole, Attorney at Law, King County Pros Offc, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

COLEMAN J.

Randy Green appeals his conviction for criminal trespass. He argues that his speedy trial rights were violated when the trial court granted four one-day extensions which allowed the prosecutor to complete two trials before beginning his. Green did not object to the extensions until after his trial began. Due to his failure to timely assert his speedy trial rights, we conclude that he waived them and affirm.

FACTS
Randy Green’s trial date was scheduled for May 16, 2002. His speedy trial expiration date was May 21, 2002. The deputy prosecutor assigned to Green’s case was in trial from May 16 until May 28 on other cases. On May 21, the State moved for an extension of Green’s speedy trial date based upon the deputy prosecutor’s unavailability. The court granted a one-day extension. Three additional one-day extensions were granted on May 22, 23, and 24, which resulted in an extension of Green’s speedy trial date until May 28, 2002 (the day after the Memorial Day holiday). At some time after May 21 and before May 28, the deputy prosecutor ended one trial and began a second, which was completed on the morning of May 28.

In the afternoon of May 28, 2002, Green’s trial began and his attorney moved to dismiss the charges due to a violation of Green’s speedy trial date. The trial court denied the motion on the basis that the deputy prosecutor was involved with other trials every day from the date Green’s original speedy trial period expired until the date Green’s trial began.

DISCUSSION
CrR 3.3(d)(8) authorizes trial courts to extend the time within trial must be held if unforeseen or unavoidable circumstances arise unless the defendant will be substantially prejudiced in his defense. State v. Raper, 47 Wn. App. 530, 736 P.2d 680 (1987). It is well-established that a prosecutor’s involvement in another trial can constitute `unavoidable or unforeseen circumstances beyond the control of the court or the parties.’ State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016
(1996). If a defendant fails to assert his speedy trial right at a time when the trial court could have avoided the violation, the right is waived. State v. Becerra, 66 Wn. App. 202, 206, 831 P.2d 781 (1992). A defendant has an obligation to timely assert his CrR 3.3 rights or notify the court in a timely manner of his intent to rely upon CrR 3.3 to seek dismissal of the charges. Carson, 128 Wn.2d at 816. This court reviews a grant or denial of a motion to extend speedy trial date for a manifest abuse of discretion. State v. Cannon, 130 Wn.2d 313, 327, 922 P.2d 1293 (1996).

Here, the State moved on four separate occasions to extend Green’s speedy trial date without objection from Green. Green did not assert his speedy trial rights until his trial began on May 28. Green, who was not in custody pending trial, did not argue that he had been prejudiced by the brief delay of his trial date. Under Washington law, Green waived his speedy trial rights. Because Green waived his speedy trial rights, we do not address whether the trial court abused its discretion by extending the speedy trial date beyond the time required for the deputy prosecutor to complete the first trial that necessitated the extension.

We affirm.

GROSSE and APPELWICK, JJ., concur.