State v. Bryant

• Decision Date: 11 May 1992
• Docket Number: No. 29082-7-I,29082-7-I
• Citation: 829 P.2d 209,65 Wn.App. 547
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Alexander BRYANT, Appellant.

Page 547

65 Wn.App. 547

829 P.2d 209

STATE of Washington, Respondent, v. Alexander BRYANT, Appellant.

No. 29082-7-I.

Court of Appeals of Washington Division 1.

May 11, 1992.

Andrew Stanton, Washington Appellate Defender, Seattle, for appellant.

Cecile Dykas, Greg Hubbard, King County Deputy Pros. Attys., Seattle, for respondent.

PER CURIAM.

Alexander Bryant sought accelerated review of the manifest injustice disposition entered in juvenile court on August 12, 1991, following his plea of guilty to two counts of theft. A commissioner of this court struck the findings of fact and conclusions of law and remanded for sentencing within the standard range. The State moved to modify that ruling. We reverse and remand for resentencing.

Bryant was charged with two counts of theft in the third degree for incidents which occurred on January 11, 1991, and July 18, 1991. In each case, Bryant fished money out of a parking lot payment box as an adult co-defendant stood by as a lookout.

The disposition hearing was held before Judge Terrence Carroll ¹ on August 12, 1991. The State and Bryant's counsel recommended a disposition within the standard range of 8-12 weeks commitment. There was information before the court that Bryant habitually engages in this conduct and that he uses the money to support his drug and alcohol habits. The caseworker recommended that the court find a manifest injustice and impose 21-28 weeks commitment. Her recommendation was based upon the fact that Bryant had a serious drug and alcohol problem, that he had not benefited from numerous opportunities for treatment within the community and that he needed longer term commitment with treatment. Bryant had never completed a probationary period without reoffending.

Judge Carroll found a manifest injustice and imposed a commitment of 21 to 28 weeks. At the end of his oral decision, Judge Carroll directed the State to prepare written findings consistent with his oral decision.

On December 2, 1991, findings of fact and conclusions of law in support of the disposition were signed by Commissioner Maurice Epstein.

Bryant appealed the disposition on the grounds that findings and conclusions had not been entered, that the reasons did not support a manifest injustice finding and that the disposition was clearly excessive. Counsel for Bryant also moved to strike the findings and conclusions on the ground that the findings and conclusions were not timely entered and that the superior court no longer had jurisdiction.

A commissioner of this court granted the motion for accelerated review, struck the findings and conclusions and remanded for imposition of a disposition within the standard range because (1) the findings and conclusions were not a completely accurate rendition of Judge Carroll's oral disposition and contained information which was not in the record before this court, ² and (2) the findings were signed by Commissioner Epstein rather than Judge Carroll. The State moved to modify the commissioner's ruling.

The dispositive issue in this case is whether the findings of fact and conclusions of law on the manifest injustice disposition must be stricken because they were signed by a judge other than the disposition judge.

The rule is well-settled that a successor judge is without authority to enter findings of fact on the basis of testimony heard by a predecessor judge. Tacoma Recycling Inc. v. Capital Material Handling Co., 42 Wash.App. 439, 711 P.2d 388 (1985) (successor judge following a remand was without authority to adopt the findings and conclusions of original judge); In re Woods, 20 Wash.App. 515, 581 P.2d 587 (1978) (termination of parental rights remanded for entry of additional findings; new trial will be required if the trial judge has left the bench); Wold v. Wold, 7 Wash.App. 872, 503 P.2d 118 (1972) (findings of fact in dissolution were inadequate; new trial required because trial judge was no longer on the bench).

The rule is applied even where the prior judge had entered an oral decision, State ex rel. Wilson v. Kay, 164 Wash. 685, 4 P.2d 498 (1931), or a memorandum decision. Hawley v. Priest Rapids Ice & Cold Storage Co., 172 Wash. 71, 19 P.2d 400 (1933). In Wilson, trial was completed and the judge entered an oral decision of judgment for the plaintiff. The trial judge died before findings and conclusions were entered. The plaintiff sought entry of findings of conclusions by a successor judge. The successor judge signed the findings over the defendant's objection. On appeal, the court held that the successor judge was without authority to enter findings of fact. The court noted that an oral decision is not final and that findings of fact by a judge take the place and have the effect of a jury verdict.

This case law is consistent with the applicable court rules. CR 63 provides:

(b) Disability of a Judge. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot...