State v. Franks

• Decision Date: 23 April 2001
• Docket Number: No. 43678-3-I.,43678-3-I.
• Citation: 105 Wash.App. 950,22 P.3d 269
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dominique FRANKS, Appellant.

22 P.3d 269

105 Wash.App. 950

STATE of Washington, Respondent, v. Dominique FRANKS, Appellant.

No. 43678-3-I.

Court of Appeals of Washington, Division 1.

April 23, 2001.

Catherine Glinski, James R. Dixon, Nielsen, Broman & Assoc. PLLC, Seattle, for Appellant.

Andrew J. King-Ries, Andrea Ruth Vitalich, King County Deputy Pros. Attys., Seattle, for Respondent. BECKER, Acting Chief Justice.

The State intended to charge appellant Dominique Franks with robbery, and filed an information naming her in the caption. But the charging language accused a different person. While the flaw in the information did not deprive the court of subject matter jurisdiction, it did deprive the appellant of her right to be informed of the charge she had to meet. Because that essential fact cannot be found in the charging document even by liberal construction, the appellant is entitled to a judgment of dismissal without prejudice.

According to testimony presented by the State, two juveniles approached Susan English as she was walking home from work late one night in June, 1998. They demanded her money and backpack. When she refused, they attacked her. She screamed, and they fled. Minutes later, two police officers arrived. Upon hearing the description of the assailants, the officers suspected Dominique Franks and her sister, Malia Franks, who lived nearby. They went to the Franks residence and asked for Dominique. Malia came to the door and introduced herself as Dominique. English identified Malia as one of the two girls who had attacked her. After the police arrested Malia, the actual Dominique emerged from the house and told the officers that she was the culprit and they had arrested the wrong person. The police then arrested Dominique.

The State filed separate informations in juvenile court. One of the informations named Dominique in the caption: "THE STATE OF WASHINGTON, Plaintiff, v. DOMINIQUE DANETTE FRANKS, B.D. 08-10-81, Respondent." But the charging language in that information accused only Malia Franks of committing the crime:

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington, do accuse MALIA MYNETTE FRANKS of the crime of Robbery in the Second Degree, committed as follows:

That the respondent MALIA MYNETTE FRANKS in King County, Washington, together with another, on or about 5 June 1998, did unlawfully and with intent to commit theft take personal property of another, from the person and in the presence of Susan English, against her will, by the use or threatened use of immediate force, violence and fear of injury to such person or her property and the person or property of another[.]

The trial court joined the two cases. The sisters appeared through separate counsel. Each of them defended against the charge of robbery in the second degree. Malia presented an alibi defense. Dominique defended primarily on the ground that the victim had been unable to positively identify her. The court found Malia not guilty, and found Dominique guilty as charged.

Dominique raised no 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 lacked subject matter jurisdiction. The State, on the other hand, contends that the flaw in the information must be analyzed as a potential due process problem under State v. Kjorsvik, 117 Wash.2d 93, 812 P.2d 86 (1991), rather than as a problem with the court's jurisdiction.¹

"Jurisdiction is the power of the court to hear and determine the class of action to which a case belongs." State v. Buchanan, 138 Wash.2d 186, 196, 978 P.2d 1070 (1999). The term "subject matter jurisdiction" refers to the authority of a court or tribunal to adjudicate a particular type of controversy, not a particular case. Marley v. Department of Labor & Industries, 125 Wash.2d 533, 539, 886 P.2d 189 (1994). The superior court in this case has subject matter jurisdiction because the Washington State Constitution grants superior courts subject matter jurisdiction in felony cases, and the juvenile court is a division of the superior court. Wash. Const. Art. 4, § 6; State v. Werner, 129 Wash.2d 485, 492, 918 P.2d 916 (1996).

According to State v. Corrado, a superior court "acquires" subject matter jurisdiction over a criminal action only from the time when an indictment or information is filed. Corrado, 78 Wash.App. at 615, 898 P.2d 860. In Corrado, the State filed an information against Corrado for second-degree murder. At Corrado's first trial, the State was unable to locate a key witness. The trial court granted the State's motion to dismiss the information without prejudice. The State later rearraigned Corrado but neglected to file a new information. A second trial proceeded, the jury convicted Corrado, and the court entered judgment. Corrado argued on appeal that the State's failure to file a new information deprived the court of jurisdiction. The Court of Appeals held the conviction to be a nullity on the basis that the court "lost" subject matter jurisdiction when the original information was dismissed and never "reacquired" jurisdiction because the State did not file another information. Corrado, 78 Wash.App. at 615-16, 898 P.2d 860.

While the result in Corrado may be correct on some other basis, the analysis is flawed in its assumption that a superior court must "acquire" subject matter jurisdiction in each particular case, and that the court may "lose" such jurisdiction due to procedural error. As the Supreme Court made clear in Marley v. Department of Labor & Industries, subject matter jurisdiction is not temporal, and its existence is not dependent upon compliance with procedural rules:

A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.

[T]he focus must be on the words "type of controversy." If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction.

Marley, 125 Wash.2d at 539,886 P.2d 189 (quoting Robert J. Martineau, Subject Matter

Jurisdiction as a New Issue on Appeal: Reining In an Unruly Horse, 1988 B.Y.U.L.Rev. 1, 28.)

The Corrado court cited State v. Sponburgh, 84 Wash.2d 203, 206, 525 P.2d 238 (1974) for the proposition that "a superior court acquires subject matter jurisdiction only `[f]rom the time an action is commenced'." Corrado, 78 Wash.App. at 615, 898 P.2d 860. Sponburgh was cited for the same proposition in State v. Cronin, 130 Wash.2d 392, 398, 923 P.2d 694 (1996).² But Sponburgh does not actually discuss the superior court's "subject matter jurisdiction." Rather, it merely uses the term "jurisdiction." Sponburgh, 84 Wash.2d at 206, 525 P.2d 238. In Sponburgh, the court rejected the defendant's argument that a trial court lacked "jurisdiction" to enter an order releasing grand jury evidence that had been previously sealed pursuant to an order that was issued along with an order dismissing the case against the defendant. The Supreme Court held that the trial court had retained "jurisdiction" to modify the protective order despite the dismissal of the indictment. Sponburgh, 84 Wash.2d at 206, 525 P.2d 238. The Sponburgh court wrote:

From the time an action is commenced, the superior court acquires jurisdiction. Const. art. 4, § 1 et seq.; Swan v. Landgren, 6 Wash.App. 713, 495 P.2d 1044 (1972)

; Daniel v. Daniel, 116 Wash. 82, 198 P. 728, 27 A.L.R. 177 (1921).

Sponburgh, 84 Wash.2d at 206, 525 P.2d 238.

The above passage and the authorities cited therein address jurisdiction, but they do not address "subject matter jurisdiction." In Swan v. Landgren, 6 Wash.App. 713, 495 P.2d 1044 (1972), the court was confronted with the procedural issue of when a trial court's authority to control its own trial calendar begins. The Swan court held that a court acquires "jurisdiction," including the ability to control its calendar, when a complaint is filed or a summons is served. Swan, 6 Wash.App. at 715-16, 495 P.2d 1044. Swan noted, in passing, that "Article 4 of the Washington State Constitution defines the jurisdiction of our courts." Swan, 6 Wash. App. at 715, 495 P.2d 1044. Likewise, Daniel v. Daniel, 116 Wash. 82, 198 P. 728 (1921), does not address the issue of how a superior court "acquires" any type of jurisdiction. Daniel notes, in dicta, that Const. art. 4, § 6 "defines the jurisdiction of the superior courts," but also states that this provision does not purport to regulate or control the manner in which courts exercise their "jurisdiction." Daniel, 116 Wash. at 84, 198 P. 728.

In sum, Sponburgh does not support the interpretation of "subject matter jurisdiction" for which it is relied upon in Corrado and cited in dicta in Cronin. Those cases have confused the superior courts' exercise of jurisdiction over particular defendants with the courts' inherent jurisdiction over the subject matter. As the Supreme Court stated in Marley, "The term `subject matter jurisdiction' is often confused with a court's `authority' to rule in a particular manner. This has led to improvident and inconsistent use of the term." Marley, 125 Wash.2d at 539, 886 P.2d 189 (quoting In re Major, 71 Wash.App. 531, 534, 859 P.2d 1262 (1993)).

The Supreme Court's discussion of subject matter jurisdiction in Marley is consistent with its earlier rejection, in Kjorsvik, of the argument that a trial court lacks subject matter jurisdiction over a case commenced by a deficient information. An information that fails to state the essential elements of the charged crime raises an issue that can be considered on appeal despite the lack of an objection below. But the issue raised is lack of due process, not lack of jurisdiction. The Court declined to "view...