State v. Sodorff

Munson, J.

— Defendant appeals from an order in superior court dismissing his appeal from district court.

Upon his conviction in District Court, the defendant gave oral notice of appeal. He subsequently filed a written notice of appeal, but failed to comply with JCrR 6.01(b), which requires that notice of appeal be served upon the attorney “for the party in whose favor judgment was entered,” i.e., the State. The prosecuting attorney, noting this oversight, filed a motion in the Superior Court to dismiss the appeal.

The Superior Court Judge, recognizing the rule as set down in State v. Carmody, 75 Wn.2d 615, 452 P.2d 959 (1969); State v. Gregory, 74 Wn.2d 696, 446 P.2d 191 (1968); Port Angeles v. Dustin, 73 Wn.2d 712, 440 P.2d 420 (1968), granted the State’s motion. The cases cited require, in clear and concise language, strict compliance with the rule requiring serving and filing of the notice of appeal and other requirements set forth in JCrR 6.01. In his argument pro se before the Superior Court, defendant advised the court that he had filed his notice of appeal after having been informed by a Judge of the District Court that he need only file it with the court. He was not advised it was necessary to serve such a notice upon the prosecuting attorney.

In the instant case there is neither an affidavit nor testimony from the Judge of the District Court to substantiate defendant’s argument. However, if in fact defendant was given this misinformation by representatives of the state, including court personnel, the notice of appeal should be deemed to have been in substantial compliance with the court rules inasmuch as the defendant did file his notice of appeal with the court. Port Angeles v. Dustin, supra; People v. Martin, 60 Cal.2d 615, 387 P.2d 585, 35 Cal. Rptr. 769, (1963). One approach would be to remand for a hearing to determine whether the defendant was lulled into his failure to strictly comply with the rules by representatives of the state.

However, rather than remand this matter for hearing on that issue, we think it more practical to overrule the order dismissing defendant’s appeal and reinstate the appeal. Cf. Malott v. Randall, 83 Wn.2d 259, 517 P.2d 605 (1974). Therefore, we remand this case to the Superior Court for trial de novo.

McInturff, J., concurs.