State v. Corrado, 17818-4-II

Decision Date19 July 1995
Docket NumberNo. 17818-4-II,17818-4-II
Citation78 Wn.App. 612,898 P.2d 860
CourtWashington Court of Appeals
PartiesThe STATE of Washington, Respondent, v. George Lewis CORRADO, Appellant.

Patricia Anne Pethick, Tacoma, for appellant.

Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., Tacoma, for respondent.

MORGAN, Judge.

George Lewis Corrado appeals his conviction for attempted second degree murder. He claims the trial court lacked jurisdiction because the State failed to file a charge. We vacate the conviction.

On July 30, 1993, Corrado shot Dorothy Gardner. On August 2, 1993, he was charged with attempted murder in the first degree. On September 24, 1993, the State moved for dismissal without prejudice, because "the State has been unable to locate [Gardner] ... despite the issuance of a material witness warrant". 1 The trial court granted the motion and dismissed the charge. Apparently, Corrado was not released due to other holds.

Gardner was soon found, and on October 25, 1993, Corrado was returned to court for rearraignment. The verbatim record made on that date does not show that a new information had been filed, that the arraignment court had a new information before it, or that a copy of a new information was served on Corrado. Rather, it shows only that the prosecutor told the court:

We're here for a rearraignment today, Your Honor. The state dismissed the charges without prejudice on 9/24. We're re-filing today, one count of attempted murder in the first degree, the same cause number, everything is the same.

Report of Proceedings (Oct. 25, 1993), at 2. 2 The arraignment court went ahead and set trial for November 1.

When the case was called for trial on November 1, the following discussion occurred:

THE COURT: ... There is an issue that nobody has raised that I don't understand. I hesitate to raise issues sua sponte, but I don't see any new information in the file and I don't know how, once the case is dismissed, you can arraign somebody if you haven't refiled the case. Can anybody help me out?

[THE PROSECUTOR]: I was informed that we could refile a copy at that time.

THE COURT: There isn't a copy. I don't see the copy in the file after the order of dismissal. I am not saying you didn't. It may be in the clerk's office. Let me give you the file and let you take a look at this. Let me say that the journal entry does say--the journal entry of October 25th says rearraignment....

....

[THE PROSECUTOR]: I recollect pretty much what's in the notes. We handed copies--we handed copies up. It's possible the clerk didn't file it because it was a copy, would be my only explanation....

....

THE COURT: Once there has been an order of dismissal, whether it's with or without prejudice, how can you proceed without filing a new charge? Even though it's the old incident, does it have to be charged anew, is the question, and if it is not charged anew, is the dismissal without prejudice simply a tolling in terms of proper procedure.

Report of Proceedings, at 16-18. The discussion ended with the prosecutor stating, "I would inform the court and counsel, both, that we will file the information just to be safe." 3

As far as the record shows, the promised information was never filed. The trial proceeded, and the jury returned a verdict of guilty of attempted murder in the second degree.

Corrado now appeals. He claims that the State's failure to file a charge "deprived the court of jurisdiction and renders [the] conviction void." 4

Preliminarily, subject matter jurisdiction cannot be conferred "by consent, waiver, or estoppel on the part of the accused ...," 42 C.J.S. Indictments and Informations, § 2 (1991). Thus, Corrado can now attack subject matter jurisdiction, even though he failed to do so in the trial court. See First Union Mgt., Inc. v. Slack, 36 Wash.App. 849, 854, 679 P.2d 936 (1984) (jurisdiction can be challenged at any time).

Three points are relevant to the merits. First, a superior court acquires subject matter jurisdiction only "[f]rom the time an action is commenced." State v. Sponburgh, 84 Wash.2d 203, 206, 525 P.2d 238 (1974). A criminal action is commenced by the filing of an indictment or information. CrR 2.1(a); see Washington Constitution art. I, § 25. Thus, a superior court acquires subject matter jurisdiction over a criminal action only at such time as an indictment or information is filed.

Second, to dismiss an indictment or information without prejudice "leaves the matter in the same condition in which it was before the commencement of the prosecution." Royce A. Ferguson, Jr., 12 Wash.Crim.Prac. and Proc., § 2218 (1984). Thus, a superior court loses subject matter jurisdiction when the indictment or information is dismissed.

Third, "[t]he law is well settled that an order entered without jurisdiction is void." State ex rel. Patchett v. Superior Court, 60 Wash.2d 784, 787, 375 P.2d 747 (1962). Thus, if a superior court acts without subject matter jurisdiction, its acts are void. State ex rel. Snohomish Cy. v. Sperry, 79 Wash.2d 69, 74, 483 P.2d 608, cert. denied, 404 U.S. 939, 92...

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12 cases
  • State v. Corrado
    • United States
    • Washington Court of Appeals
    • 10 Mayo 1996
    ...consistent with this opinion. HOUGHTON, Acting C.J., and FLEISHER, J. Pro Tem., concur. 1 Br. of Appellant at 14.2 State v. Corrado, 78 Wash.App. 612, 898 P.2d 860 (1995).3 Br. of Appellant at 2.4 U.S. Const. amend. V. The double jeopardy clause applies to the states through the due process......
  • State v. Franks
    • United States
    • Washington Court of Appeals
    • 23 Abril 2001
    ...objection below to the information. On appeal, she contends that the finding of guilt must be reversed. Relying on State v. Corrado, 78 Wash.App. 612, 898 P.2d 860 (1995), she contends that the State's failure to name her in the charging portion of the information means that the court lacke......
  • Lewis County v. W. WA. GMHB
    • United States
    • Washington Court of Appeals
    • 23 Agosto 2002
    ...the superior court acquires jurisdiction."); State v. Franks, 105 Wash.App. 950, 955, 22 P.3d 269 (2001); State v. Corrado, 78 Wash.App. 612, 615, 898 P.2d 860 (1995), review denied, 138 Wash.2d 1011, 989 P.2d 1138 (1999). In Franks, Division One criticized—quite correctly—our use of the te......
  • State v. Hecht
    • United States
    • Washington Court of Appeals
    • 29 Enero 2018
    ..." State v.Taylor, 150 Wash.2d 599, 602, 80 P.3d 605 (2003) (internal quotation marks omitted) (quoting State v. Corrado, 78 Wash.App. 612, 615, 898 P.2d 860 (1995) ). As a result, "the legal and substantive issues are generally not resolved," and a dismissal without prejudice lacks finality......
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