State v. Dolman , 22 Wash. App. 917 ( 1979 )

James, J.

This case presents the question of whether a prosecutor can charge a misdemeanor by an information in superior court after an accused has complied with a lawfully issued citation and notice to appear in district court upon a charge for the same offense. We agree with the trial court that even if the citation and notice to appear were not formally filed in district court, prosecution in superior court is barred.

The undisputed facts are as follows: On October 2, 1976, defendant William T. Dolman was charged with the violation of a commercial fishing regulation. As authorized by JCrR 2.01(b)(1), the arresting officer issued Dolman "a citation and notice to appear in court, in lieu of continued custody." As required by JCrR 2.01(b)(2)(i) and (iv), the citation contained "the name of the court" and "the time and place at which [Dolman was required] to appear". Dol-man was directed to appear in the San Juan County District Court on October 7, 1976, at 11 a.m. As provided by JCrR 2.01(b)(3), Dolman gave "his written promise to appear in court as required by the citation and notice served."

On October 6, 1976, Dolman's attorney filed a written notice of appearance in the district court. The attorney was advised by the district court judge that he would be notified by mail when the case was set for trial.

Unknown to Dolman's attorney or to the district court judge, the court copy of the citation had not been filed in the district court. Instead, the arresting officer's sergeant had mailed the court copy of the citation to the San Juan County Prosecuting Attorney. The prosecutor had previously determined that he would file charges for commercial fishing violations only in superior court. He had requested the sergeant to notify Dolman that he need not appear in district court because he would be served with a summons requiring his appearance in superior court. But Dolman was never so notified.

On October 7, 1976, an information charging the same offense was filed in superior court. Thereafter, Dolman applied to the district court for an order dismissing the charge for failure to bring him "to trial within 60 days from the date of appearance" as required by JCrR 3.08. The State resisted, contending that since the court copy of the citation had not been filed, the district court was without jurisdiction. The district court judge agreed and denied the motion to dismiss.

The case was called for trial in Superior Court on March 11, 1977. Prior to the empaneling of the jury, Dolman moved to dismiss the charge. The trial judge granted the motion.

The dispositive issue is whether, under the circumstances above outlined, the district court had acquired jurisdiction. If it had, under the rule of State v. Cummings, 87 Wn.2d 612, 555 P.2d 835 (1976), the dismissal of the charge against Dolman was proper.

At common law, a prosecutor had unfettered discretion to dismiss and refile charges. However, that discretion was circumscribed in Washington by RCW 10.43.010 and RCW 10.46.090 which afforded a person charged with a misdemeanor a "valuable statutory right to have his case tried in the first court which assumed jurisdiction and not to be harassed by multiple prosecutions for the same offense." Cummings, at 616-17. "[Ajnother prosecution" (RCW 10.43.010) for a misdemeanor or gross misdemeanor charge which had been dismissed upon the "application of the prosecuting attorney" (RCW 10.46.090) was barred. In Cummings, at 615, it was held that although RCW 10.43-.010 and RCW 10.46.090 have been superseded by CrR 3.3 and CrR 8.3, the rules apply only "to superior court proceedings and do not purport to control proceedings in justice court." An abandonment of a prosecution first filed in district court was held to bar "further pursuit" of an accused in superior court. Cummings, at 617.

The State contends that the rule of Cummings is inapplicable. The State argues that because the original citation and notice to appear were never filed in district court, that court never acquired jurisdiction. We do not agree.

JCrR 2.01(d) provides that the "original" of a citation shall be filed with the clerk of the court. JCrR 2.01(b)(4) provides in part that:

Such citation and notice when signed by the citing officer and filed with a court of competent jurisdiction shall be deemed a lawful complaint for the purpose of initiating prosecuting of the offense charged therein.

JCrR 2.08(a) provides in part that:

The court shall issue a warrant for the arrest of any defendant who is a resident of this state and who has failed to appear before the court either in person or by counsel in answer to a citation and notice to appear upon which he has given his written promise to appear. . . .

As above noted, JCrR 2.01(d) provides that the citation and notice shall be filed with the clerk of the court. We recognize that, as pointed out in Spokane County ex rel. Sullivan v. Glover, 2 Wn.2d 162, 169, 97 P.2d 628 (1940), while the word "shall" is usually construed as mandatory, it may also be construed as directory if necessary to fulfill the legislative intent. We are satisfied that as used in JCrR 2.01(d) the word "shall" is mandatory to the extent that if the prosecution (through the authorized agency of the arresting officer) elects to initiate a criminal proceeding by issuance of a citation and notice to appear, the original of the notice and citation may be filed only in the court designated in the citation.

The issuance and acceptance of a citation in lieu of arrest is "in effect ... a release of [a] defendant on his personal recognizance." State v. Doolittle, 69 Wn.2d 744, 749, 419 P.2d 1012 (1966). A willful failure to appear in court after release on personal recognizance is made a crime subject to fine and imprisonment by RCW 10.19.130. It necessarily follows that a citation and notice to appear are "process" issued by the court named in the citation. When Dolman accepted the citation and agreed to appear, the San Juan County District Court acquired jurisdiction to hear the charge against him. Although the prosecution did not, as in Cummings, elect to dismiss the district court charge, the failure to bring Dolman to trial within 60 days as required by JCrR 3.08 mandated dismissal of the charge against him with prejudice.

Affirmed.

Swanson, J., concurs.