How to Appeal a Failure to Appear Finding

[dferguson]

My question involves traffic court in the State of: Washington.

I was given a cittation for speeding. I attended the pre trial conference and requested a contested hearing as well as filed the appropriate paperwork for discovery and made a motion to dismiss. I waived my 14/120 rights and requested a hearing after Jan 4 of this year. The court could not set a date at that time and i was told that my notice of hearing would be mailed to me.
on Feb 1 of this year i received nottice from the DOL that my license was slated to be suspended due to a finding of the court that I failed to appear at a Jan 20 hearing. I never recieved notice of this hearing.
On Feb 2 I filed a request of the Kent Municipal Court for a contested hearing. On Feb 4 the court supervisor, per the docket, denied my request and granted a mitigation hearing only. Upon receiving this notice of hearing i called the clerk's office and informed them that there had been an error and that I had requested a contested hearing. i was informed that the supervisor had granted me only a mitigation hearing. I asked for the appeal process and was told that I would have to attend and ask the magistrate to have it moved back to a contested hearing.
Today I attended the mitigation hearing and informed the magistrate of my request and was told "the window for that had closed". I again asked for the appeals process and was told that it wasn't going to happen and that she was mitigating my fines and to ask the clerk about any possible appeal. When I asked the clerk she told me the only possible thing i could do now was to write a letter to the presiding judge requesting an appeal.
I intend to write this letter but need a little help. Is there any case law or statutes that require the court to do anything other than mail a notice of hearing? Isn't it incumbent upon them to ensure that I am aware that I have a court date?

Thanks,
DF

[blewis]

I'm confused. In Kent Municipal Court, you must first request a "contested" hearing BEFORE you are scheduled for a "pre-hearing conference". At the pre-hearing conference, you are usually given the opportunity to "defer" or continue with the "contested" hearing. I have never heard of them scheduling a pre-hearing conference BEFORE you enter a plea, yet that's what you've implied.

As far as your plea, as far as I know, you can change it AT ANY TIME PRIOR TO JUDGMENT. If you originally request a "mitigation" hearing, you can walk in and say you're changing your plea to "not guilty", and the court MUST then schedule you for a contested hearing. At least that's what I've heard judges say -- I don't know of any rule or law that says that.

As far as your request for a contested hearing, IRLJ 2.6 (a)(1) states:

RULE 2.6 SCHEDULING OF HEARINGS

(a) Contested Hearings.

(1) Except as provided in sections (1)(i) and (ii), upon receipt of a response submitted pursuant to rule 2.4(b)(2), the court shall schedule a hearing to determine whether the defendant committed the infraction.

The word "shall" in a rule or law means MUST! The court has NO options (unless they schedule a "pre-hearing conference pursuant to sections (1)(i) and (ii)) -- if you request a contested hearing the court MUST schedule one. The "supervisor" has NO power to "grant" you anything -- the court MUST schedule the contested hearing.

I don't suppose you kept a copy of your "Order on Pre-hearing Conference" that you filled out and signed at the time. If not, go to the courthouse and have the clerk pull up your file and make you a copy.

Your main problem is that mitigation hearings CANNOT be appealed (see IRLJ 5.1). Therefore, your only recourse, as I see it, is a Motion to Vacate Judgment. That is NOT an appeal. If your motion is granted, you should be given the opportunity to contest. If it is not, you MIGHT be able to appeal that. You'll also need to read CRLJ 60, governing such motions.

Good luck,
Barry

[dferguson]

The pre trial conference was held first. I was not given a court date at the hearing as they were not scheduling for January yet and they said they would send me the notice in the mail. I never received the notice and was found to be guilty due to failure to appear.
The superviosr denied my request, after that, for a contested hearing. At the mitigation hearing i did not request anything other than a contested hearing and the magistrate simply reduced the fine and said next.

Should i write the letter to the presiding judge? in it, should i then request a motion to vacate judgement? Is there any case law that i should cite?

Thanks,
DF