Fleming, Matter of
| Decision Date | 18 July 1996 |
| Docket Number | No. 63419-0,63419-0 |
| Citation | 129 Wn.2d 529,919 P.2d 66 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Personal Restraint Petition of Jon FLEMING, Petitioner. In the Matter of the Personal Restraint Petition of Russell SMITH, Petitioner. |
Suzanne L. Elliott, Seattle, for Petitioner Fleming.
Patricia S. Novotny, Seattle, for Petitioner Smith.
Norm Maleng, King County Prosecutor, Ann M. Foerschler, Deputy, Seattle, David R. Needy, Skagit County Prosecutor, Mount Vernon, for respondent.
These consolidated petitions for review concern whether an untimely restitution order constitutes a "fundamental defect" justifying collateral review and dismissal of the restitution order. Because Washington law authorizes the imposition of restitution, we hold that an untimely restitution order, although a sentencing error, does not rise to the level of a fundamental defect. Accordingly, we dismiss the petitions.
Petitioner Russell Smith was charged with second degree assault of a child and third degree escape in King County on March 5, 1993. On April 12, 1993, he pleaded guilty to the assault charge. As part of the plea agreement, he agreed to pay full restitution to the victim, his infant son. The sentencing hearing took place on June 18, 1993, at which time the sentencing judge ordered restitution and set the restitution hearing for July 28, 1993. On July 28, the restitution hearing was continued to August 31, 1993, to allow Smith to obtain additional evidence. Neither party objected to the continuance. On August 31, the hearing was again continued, this time to September 27, 1993. On September 27, more than 100 days after the sentencing date, the matter was heard. The judge ordered Smith to pay restitution in the amount of $28,672.38. Smith appealed the restitution order to the Court of Appeals, arguing the court abused its discretion in ordering restitution. He did not challenge the timeliness of the order. The Court of Appeals affirmed the restitution order in an unpublished per curiam opinion. State v. Smith, No. 33669-0-I (Oct. 24, 1994) (per curiam).
Petitioner Jon Fleming pleaded guilty to trafficking in stolen property in Skagit County. As part of the plea agreement, he agreed to pay an unspecified amount of restitution. On September 30, 1991, he was sentenced and ordered to pay restitution, the amount to be determined at a later date. A restitution hearing was scheduled for November 19, 1992, but rescheduled to December 3, 1992, to allow Fleming to attend. On December 3, 1992, more than one year after the sentencing date, the judge ordered restitution in the amount of $5,125. Fleming appealed the restitution order, arguing the trial judge erred in setting the amount and by considering an earlier uncharged crime. He did not challenge the timeliness of the restitution order. The Court of Appeals affirmed the restitution order in State v. Fleming, 75 Wash.App. 270, 877 P.2d 243 (1994), filed August 1, 1994.
Now, by way of personal restraint petitions, Fleming and Smith both contend for the first time that the restitution orders are void because they were entered more than 60 days after the sentencing hearing date. 1
In Krall, which was decided after the trial courts ordered restitution in both cases, we held the 60-day time limit in former RCW 9.94A.142(1) is mandatory and reversed as untimely a restitution order entered 185 days after sentencing. State v. Krall, 125 Wash.2d 146, 881 P.2d 1040 (1994). In Krall, unlike this case, the defendant raised the timeliness issue at the time of the restitution hearing. In Moen, we reversed as untimely a restitution order challenged for the first time on appeal. State v. Moen, 129 Wash.2d 535, 919 P.2d 69 (1996). We held that a sentencing error can be addressed for the first time on appeal under RAP 2.5 even if the error is not jurisdictional or constitutional. Moen, 129 Wash.2d at 543, 919 P.2d 69.
In order to obtain relief by way of personal restraint petition, however, a person must establish (1) he or she is being unlawfully restrained, (2) due to a "fundamental defect which inherently results in a complete miscarriage of justice." In re Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990). We place this additional burden on prisoners' access to collateral relief because such relief " 'undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders.' " In re Cook, 114 Wash.2d at 809, 792 P.2d 506 (quoting In re Hews, 99 Wash.2d 80, 86, 660 P.2d 263 (1983)).
Fleming and Smith argue they have satisfied both of these requirements. First, they argue they are under unlawful restraint because, under Krall, an untimely restitution order violates former RCW 9.94A.142(1). Second, they argue, somewhat circularly, if we require them to pay restitution in spite of the fact the trial court ordered the amount more than 60 days after sentencing, then our decision will inherently result in a complete miscarriage of justice. We agree a restitution order may constitute restraint. We do not accept, however, Petitioners' argument that an untimely restitution order constitutes a fundamental defect resulting in a complete miscarriage of justice.
In its certification order, the Court of Appeals framed the timeliness issue in terms of subject matter jurisdiction. It is true a jurisdictional defect constitutes a fundamental defect for which relief can be granted by way of a personal restraint petition. 2 But, as we explained in Moen, "untimely imposition of restitution as a condition of a sentence is not a jurisdictional defect." Moen, 129 Wash.2d at 545, 919 P.2d 69. Subject matter jurisdiction exists where "the court has the authority to adjudicate the type of controversy in the action" and subject matter jurisdiction continues to exist in the face of an erroneous interpretation of the law. Moen, 129 Wash.2d at 545, 919 P.2d 69 (citing Marley v. Department of Labor & Indus., 125 Wash.2d 533, 539, 886 P.2d 189 (1994)). As we explained in Moen, the court had jurisdiction to order restitution not withstanding the fact that the restitution order was untimely.
While the sentencing error in this case is not jurisdictional, we have held that imposition of a sentence not authorized by statute is a...
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In re Jones
... ... Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) ); Goodwin, 146 Wash.2d at 868, 50 P.3d 618 ("sentence that is based upon an incorrect offender ... ...
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State v. Ross
... ... II ... ANALYSIS ... Mootness ... As an initial matter, the State contends that Ross' case is moot since Ross' confinement and State supervision ended November 95 P.3d 1229 25, 2003. 1 We have stated ... Moen, 129 Wash.2d 535, 543-48, 919 P.2d 69 (1996) ; In re Pers. Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) ). In State v. Paine, the Court of Appeals aptly stated that: ... A justification for the rule is that ... ...
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State v. Peltier
... ... , because the charges had been filed following the expiration of the applicable statutory limitation periods, the court did not have subject matter jurisdiction over the case. 5 7 The superior court determined that the issue before it was whether a criminal statute of limitations is ... Petitioner must also meet the requirements of In re Personal Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Personal Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)): In order to ... ...
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State v. Bahl
... ... Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996); State v. Loux, 69 Wash.2d 855, 858, 420 P.2d 693 (1966), overruled in part by Moen, 129 Wash.2d at ... Loy, 237 F.3d 251 (3d Cir.2001). 3 In Loy, the government asked the court to refrain as a matter of judicial policy from reviewing due process challenges to conditions of release prior to a violation of those conditions. In addition, and similar ... ...
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Table of Cases
...(1971), review denied, 80 Wn.2d 1003 (1972): 16.6(1), 16.6(2) State v. Fleming, 75 Wn. App. 270, 877 P.2d 243 (1994), petition dismissed, 129 Wn.2d 529 (1996): 11.3(1) State v. Flora, 160 Wn. App. 549, 249 P.3d 188 (2011): 12.8(7) State v. Folden, 53 Wn. App. 426, 767 P.2d 589, review denie......
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§ 11.3 Rule-Based Exceptions to The General Rule
...be addressed for the first time on appeal." Id. In State v. Fleming, 75 Wn.App. 270, 276 n.3, 877 P.2d 243 (1994), petition dismissed, 129 Wn.2d 529 (1996), a case from the same division, the court appeared to resolve the issue without discussion in a footnote. The court agreed to decide wh......