PASCO -- A Pasco man had his third-degree rape conviction dismissed after the state Court of Appeals recently ruled his speedy trial rights were violated.
In a 2-1 decision, the appellate court said Jose G. Chavez-Romero should have had his trial in Franklin County Superior Court scheduled within 90 days of his arraignment.
Because of the violation, his conviction was dismissed and he cannot be tried again.
Justices Teresa C. Kulik and Dennis J. Sweeney determined that Chavez-Romero objected to continuing this trial, but Judge Cameron Mitchell erred when he allowed the new trial date to be set about three weeks past the allowed time.
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Justice Kevin M. Korsmo dissented to the majority's opinion. He agreed the trial was improperly set beyond the 90-day deadline, but said Chavez-Romero failed in his objection to ask the court to set a trial date within the allowed time.
According to court documents, Chavez-Romero was 21 at the time he was arrested by Pasco police in February 2009 after being found in a car with a 13-year-old girl. Chavez-Romero said he believed the girl, who was his girlfriend, was 15.
Because Chavez-Romero was in custody, his trial had to be set within 60 days. The trial was April 29, the 57th day following his arraignment, documents said.
Chavez-Romero ended up being released on his personal recognizance a week before trial and a new trial date was set within the 90-day deadline for defendants who are out of custody.
Chavez-Romero objected and said he'd miss his next court hearing if released because he'd be transferred to Immigration and Customs Enforcement, which is what happened.
The trial date was canceled because he failed to appear, and when he was re-arrested, a new date was set for July 15.
Chavez-Romero filed a motion to dismiss for a violation of his speedy trial rights, contending the state had to bring him to trial in 60 days. His motion was denied and when he eventually went to trial, he was convicted.
In the majority opinion, the justices determined the trial needed to be scheduled within 90 days of his arraignment, not counting the time Chavez-Romero was in federal custody, which would have set a June 23 expiration date.
They noted that even though Chavez-Romero wrongly contended that his trial should have been within 60 days, it didn't nullify his motion to dismiss the case.
Korsmo, in his dissent, said the 90 days expired June 18, but again said when the Chavez-Romero appeared in court in May, there was time to ask for a trial to be scheduled within the appropriate time.
He also faulted the majority justices' opinion that Chavez-Romero's objection was "close enough to put the trial court on notice."
"This approach rewards error and encourages counsel to make vague arguments in hopes that a reviewing court will make a better argument," Korsmo wrote.