State v. Hartwell, 13137-1-I
| Decision Date | 19 July 1984 |
| Docket Number | No. 13137-1-I,13137-1-I |
| Citation | 684 P.2d 778,38 Wn.App. 135 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Douglas Harold HARTWELL, Appellant. |
Ronald R. Piper, Bellevue, for appellant.
Norman K. Maleng, King County Pros. Atty., Robert A. Weppner, Deputy Pros. Atty., Seattle, for respondent.
Douglas Harold Hartwell appeals the restitution order entered after he pled guilty to leaving the scene of an accident. We find that the restitution ordered is not sufficiently related to the crime charged to satisfy the requirements of RCW 9.94A.140, and 9.95.210, and reverse the trial court order.
Hartwell was involved in an accident which caused serious injuries to three people. He left the scene of the accident without stopping to render aid or leave the information required by statute. Shortly afterward he was arrested at home and charged with violation of RCW 46.52.020, a felony. Hartwell pled guilty to the charge on October 6, 1982, and was given a 5-year suspended sentence conditioned on continued counseling, license revocation, payment of costs and attorney fees, and restitution in an amount to be determined at a later hearing. The amount of restitution was set at a hearing held on April 4, 1983.
We consider two issues raised on appeal by Hartwell: whether RCW 9.94A.140 allows entry of restitution orders more than 60 days after sentencing; and whether the injuries for which restitution was ordered are sufficiently related to the crime to meet the statutory requirements.
RCW 9.94A.140 provides in part:
If restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days and may set the terms and conditions under which the defendant shall make restitution ... For the purposes of this section, the offender shall remain under the court's jurisdiction for a maximum term of ten years subsequent to the imposition of sentence. The portion of the sentence concerning restitution may be modified as to amount, terms and conditions during the ten-year period ...
Hartwell argues that under this statute, the court lacks jurisdiction to enter a restitution order later than 60 days after sentencing. The State contends Hartwell did not challenge the trial court's determination at the sentencing hearing that the restitution hearing should be held within the next year, and may not, therefore, raise the issue on appeal. The State also argues that the language "shall determine" is permissive, not mandatory.
Determining whether the time limit is mandatory or permissive requires construction of the word "shall" as used in the statute. See State v. Sargent, 36 Wash.App. 463, 467, 674 P.2d 1268 (1984). In Niichel v. Lancaster, 97 Wash.2d 620, 647 P.2d 1021 (1982), the court construed "shall" as used in RCW 84.40.045, which provides that the assessor shall give notice of changes in property value within 30 days of the reassessment. The court found the provision to be directory rather than mandatory, citing 1A C. Sands, Statutory Construction, § 25.03, at 298-99 (4th ed. 1972):
The important distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while the failure to comply with the requirements of the latter either invalidates purported transactions or subjects the noncomplier to affirmative legal liabilities.
This distinction grows out of the fundamental difference in the intention of the legislature in enacting the two statutes. Although directory provisions are not intended by the legislature to be disregarded, yet the seriousness of noncompliance is not considered so great that liability automatically attaches for failure to comply ... [I]f the statute is merely a guide for the conduct of business and for orderly procedure rather than a limitation of power, it will be construed as directory only.
* * *
The directory character of a statute may likewise be indicated by the purpose of a statute and the manner in which its purpose is expressed. Thus it was said: "Where words are affirmative, and relate to the manner in which the power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed as directory ...
(Footnotes omitted.) Niichel, at 623-24, 647 P.2d 1021.
Here, as in Niichel, the statute "prescribes the procedure to be followed" without purporting to limit the power of the court to require restitution. The words are affirmative and relate to the manner in which the power is to be exercised. In Niichel, the court found that "The specified times for performance are not essential to the purpose of the statute." Niichel, at 624, 647 P.2d 1021. Similarly, here, the time limit for performance is not essential to the purpose of the restitution statute. Restitution is intended to make the defendant aware of, and responsible for, his or her actions. State v. Barr, 99 Wash.2d 75, 658 P.2d 1247 (1983). This purpose is not thwarted by failure to comply with the 60-day limit, especially here, where all the parties agreed at sentencing that the imposition of restitution would be deferred. The language of the statute is directory, not mandatory, and a restitution order imposed more than 60 days after sentencing is not void.
We next consider whether there is a sufficient relationship between the crime as charged and the injuries for which restitution is ordered to support the restitution order. Relying on State v. Eilts, 94 Wash.2d 489, 617 P.2d 993 (1980), Hartwell contends restitution may be ordered only for the specific crime or crimes of which a defendant is charged and convicted. RCW 9.95.210. He argues that leaving the scene of an accident, the crime charged, is independent of any fault or liability for causing the accident, State v. Lutman, 26 Wash.App. 766, 768, 614 P.2d 224 (1980), and did not cause the injuries for which restitution was ordered.
The State argues that Hartwell is not being required to pay for the results of uncharged crimes or for unrelated damages as occurred in the cases on which he relies, but to pay only for losses incurred as a result of the hit and run incident. The State urges that the restitution statutes are to be liberally interpreted and that the loss does not have to be related directly to a specific element of the crime. The State further argues that the crime of hit and run is reasonably related...
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