# State v. Michielli > Washington Supreme Court · May 29, 1997 · 132 Wash. 2d 229 URL: https://www.frixlaw.com/law-library/cases/4711234 ## Case - **Full name:** The State of Washington v. Joseph Robert Michielli - **Court:** Washington Supreme Court - **Decided:** May 29, 1997 - **Citations:** 132 Wash. 2d 229; 937 P.2d 587; 1997 Wash. LEXIS 324 - **Precedential status:** Published - **Opinion:** Concurring in part by Alexander - **Judges:** Alexander, Dolliver - **Cited by:** 250 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711234 ## How later opinions describe it (automated extraction) - finding government mismanagement where State filed an additional charge three business days before trial with no 4 No. 79361-6-1/5 justification for the delay - affirming dismissal when the prosecutor added new charges days before trial, forcing defendant to waive speedy trial rights or proceed without opportunity to prepare a defense ## Opinion text Alexander, J. (concurring in part, dissenting in part) — I agree with the majority insofar as it concludes that the Court of Appeals erred in concluding that a defendant who steals property and later sells it cannot be charged with trafficking in stolen property. I also agree with its determination that the Court of Appeals incorrectly determined that the merger doctrine could be employed prior to trial. Where I part company with the majority is with its conclusion that the trial court’s dismissal of the trafficking counts should be upheld under CrR 8.3(b), an "extraordinary remedy” not addressed by the majority of the Court of Appeals in its decision. See State v. Blackwell, 120 Wn.2d 822, 830 , 845 P.2d 1017 (1993) (dismissal of charges under CrR 8.3(b) is an extraordinary remedy available only when the accused’s right to a fair trial has been materially aifected). The principal reason for my disagreement with the majority is that this court is essentially acting as the trial court in sustaining the trial court’s order of dismissal. The trial court did not, as the majority notes, make the required finding of facts necessary to support a CrR 8.3(b) *247 dismissal. 1 Indeed, the trial court’s written order did not even contain any reference to CrR 8.3d)). The most that can be said in that regard is that the trial court remarked from the bench that it was requested to "take a look at this case from the standpoint of CR [sic] 8.3.” Verbatim Report of Proceedings at 26. In its order dismissing the charges, however, it simply concluded that "[t]he ends of justice will be met” by the dismissal. Clerk’s Papers at 27. It seems obvious to me, as it did to the dissenting judge at the Court of Appeals, that the trial court’s reasons for dismissing the charges had nothing to do with governmental misconduct or arbitrary action by the prosecutor but, rather, feelings of sympathy for the defendant’s plight. Those reasons do not support a dismissal under CrR 8.3(b). In spite of the fact that the trial court did not indicate that it was relying on CrR 8.3(b) and that the reason it gave for its order do not support a CrR 8.3(b) dismissal, this court upholds the dismissal under that rule. In doing so, it concludes that the facts "strongly suggest that the prosecutor’s delay in adding the extra charges was done to harass Defendant” and that "[t]he long delay [in filing the additional charges], without any justifiable explanation, suggests less than honorable motives.” Majority op. at 244. In my view, it is totally inappropriate for this court to hold that the "Defendant proved the two elements which must be shown” in order to justify a CrR 8.3(b) dismissal, i.e., arbitrary action or misconduct by the government and prejudice affecting the defendant’s right to a fair trial. Majority op. at 243-44. The majority can only reach such a conclusion, in the absence of findings by the trial court, by making its own findings based on a review of the pleadings in the file. We should not make factual findings in any case, much less on this scanty record. In short, there is no basis for the majority’s remarkable conclusions that the prosecutor’s delay in adding the extra charges was done to harass the defendant and that there *248 is no other reasonable explanation for why the prosecutor waited until five days before trial to add additional charges. Indeed, the majority’s conclusion flies in the face of the trial court’s oral statement that it was not concluding that the State was "vindictive in this case.” Verbatim Report of Proceedings at 29. While one can speculate that the prosecutor delayed in adding the additional charges in order to harass the defendant, one can just as easily speculate that there were other reasons for the delay. Absent findings of fact or a stipulation as to facts, this court has no basis for concluding that the filing was delayed to harass or vex the defendant. While I would not be offended by a remand to the trial court for findings on the CrR 8.3(b) motion, I strongly oppose affirming a dismissal under that rule on the record we have before us. I dissent. Guy, Johnson, and Talmadge, JJ., concur with Alexander, J. Reconsideration denied July 22, 1997. CrR 8.3(b) requires the trial court to "set forth its reasons in a written order” when dismissing a case pursuant to that rule. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711234. Public record. Not legal advice.