State v. Eaton , 164 Wash. 2d 461 ( 2008 )

Madsen, J.

¶1 Mark Eaton was charged by amended information with possession of cocaine. Following his conviction, Eaton asserted that he was convicted of a crime with which he was not charged and that his conviction violates his constitutional rights to notice and due process. Based on the record, we agree with the Court of Appeals that Eaton was tried on an amended information charging possession of cocaine. Because he was convicted of possession of cocaine, we reject Eaton’s contention that he was convicted and sentenced for a crime with which he was not charged and affirm the Court of Appeals. State v. Eaton, noted at 133 Wn. App. 1023 (2006).

FACTS

¶2 Lake Forest Park police responded to a call on December 5, 2002, that a man, later identified as Mark Eaton, was disrupting traffic. Eaton was darting in and out of heavy traffic, yelling at drivers, and throwing debris at cars. After a struggle, police arrested him and took him to the station.

¶3 While in his holding cell, Eaton took a plastic bag out of his pants and tried to kick it down a drain. The officers stopped him before he could do so. Inside the bag they found an off-white substance, identified as amphetamine by a field test, but later correctly identified as crack cocaine.

¶4 On January 22, 2004, the State filed an information charging Eaton with one count of possession of a controlled substance in violation of former RCW 69.50.401(d) (1998). Amphetamine was the charged substance. On May 3, 2004, the first day of trial, the State moved to amend the information to charge possession of cocaine. The court granted the State’s motion and the defendant was arraigned on the amended charge. Although the prosecuting attorney handed the amended information to the judge, it does not appear in the record.¹ The defendant was tried on the amended complaint, but the trial ended in a jury deadlock. The State elected to retry the defendant and a case scheduling hearing was set.

¶5 Due to confusion, the State rearraigned the defendant at the case scheduling hearing, mistakenly relying on the original information that charged possession of amphetamine. However, the only charge laid against the defendant at that time was contained in the amended information, which charged possession of cocaine. The State did not move to amend that information.

¶6 On July 27, 2004, the defendant moved to dismiss. At that hearing, defense counsel noted her client had been rearraigned at the May 18, 2004 case scheduling hearing on a different charge than he had been tried on. She conceded that the rearraignment had been a mistake but expressed concern that the defendant may have been misled about the crime he was charged with committing. The trial judge agreed, ruling that the rearraignment was an error, and clarified that the defendant was charged with possession of cocaine pursuant to the amended information. The judge offered the defendant a continuance of the trial if he wished one. The defendant elected to proceed to trial and was convicted of possession of cocaine.

DISCUSSION

¶7 This court’s decision in State v. Barnes, 146 Wn.2d 74, 43 P.3d 490 (2002), resolves this case. There the defendant was charged with assault in the third degree. In a pretrial proceeding the State moved to amend the information to add a second count charging resisting arrest. The motion was granted and the defendant was arraigned on the amended information. However, the amended information was not placed in the court file. The defendant proceeded to trial and was convicted of resisting arrest. He appealed, claiming that the trial court lacked subject matter jurisdiction over the charge of resisting arrest because the amended information was not filed in the court file. The State offered only that the information had been “lost.”

¶8 This court rejected the defendant’s argument. We observed that a superior court acquires subject matter jurisdiction in a criminal case upon the filing of an information and noted that the original information had been filed with the court. Id. at 81. We also noted that an information may be amended “ ‘at any time before verdict or finding if substantial rights of the defendant are not prejudiced’ ” under CrR 2.1(d). Barnes, 146 Wn.2d at 81-82. Considering the plain language of that rule, we concluded that a properly amended information, even though not filed in the court file, is an effective information once it is “approved by the court, accepted by Petitioner at arraignment, and used by the trial court in presenting the case to the jury.” Id. at 88.

¶9 Similar to Barnes, even though the amended information in this case was not in the court file, the trial court granted the motion to amend the charge to possession of cocaine, the defendant was arraigned on the amended charge, and the trial court used the amended information in presenting the case to the jury. Although there was a “rearraignment” on the “original” information, this procedure did not resurrect the original information or result in amending the amended information back to the original charge. State v. Navone, 180 Wash. 121, 123-24, 39 P.2d 384 (1934) (once the State formally amends the information, the new information stands in lieu of the original, which is deemed quashed, abandoned, or superseded). Thus, the amended information replaced the original information and operated as the effective information upon which the defendant was tried.

¶10 Following a mistrial, the defendant generally need not be rearraigned at a subsequent trial. State v. Whelchel, 97 Wn. App. 813, 819, 988 P.2d 20 (1999) (rearraignment not necessary when case is remanded for new trial). While the “rearraignment” in this case could have caused confusion as defense counsel noted, it did not alter the fact that the only existing, effective information charged the defendant with possession of cocaine. Because the trial court recognized the rearraignment error, clarified that the defendant was charged with possession of cocaine pursuant to the amended information, and offered the defendant a continuance, the defendant had constitutionally adequate notice of the crime with which he was charged.

CONCLUSION

¶11 Eaton was tried and convicted of the charge contained in the amended information, possession of cocaine, and he does not claim to have been misled by the unnecessary “rearraignment” on an uncharged crime. We affirm his conviction.

Alexander, C.J.; C. Johnson, Chambers, Owens, and Fairhurst, JJ.; and Bridge, J. Pro Tem., concur.

1 It appears Eaton does not challenge this amendment to the information, nor does he challenge the information leading to the first trial.