State v. Petrich, 46030

• Decision Date: 18 September 1980
• Docket Number: No. 46030,46030
• Citation: 616 P.2d 1219,94 Wn.2d 291
• Parties: STATE of Washington, Respondent, v. Kurt Konrad PETRICH, Petitioner.
• Court: Washington Supreme Court

Page 291

94 Wn.2d 291

616 P.2d 1219

STATE of Washington, Respondent, v. Kurt Konrad PETRICH, Petitioner.

No. 46030.

Supreme Court of Washington, En Banc.

Sept. 18, 1980.

Laurence B. Finegold, Sharon A. Finegold, Harvey H. Chamberlin, Seattle, for petitioner.

Norman K. Maleng, Pros. Atty., Marc Boman, Deputy Pros. Atty., Seattle, for respondent.

WILLIAMS, Justice.

Petitioner Kurt Konrad Petrich was charged with assault in the second degree while armed with a deadly weapon and firearm: to wit, a pistol. He was convicted after a nonjury trial, but the court dismissed the deadly weapon and firearm allegations pursuant to CrR 8.3(b). The State appealed the dismissal of these sentence enhancement provisions, and the Court of Appeals reversed the trial court. State v. Petrich, 21 Wash.App. 100, 583 P.2d 674 (1978). We now reverse the Court of Appeals.

On April 11, 1976, between 12:30 and 1:30 a. m., petitioner and his fiancee, Colleen Ingram, were leaving a dance at the Legion Hall in Redmond, Washington, when they were observed embracing by Michael Hill, age 16, and Nina Heyes, age 15. Hill and Heyes mistook the couple for male homosexuals and decided to follow them to "hassle them" and "see where they lived and maybe for Halloween maybe just ".

As the Petrich-Ingram vehicle, driven by Ingram, traveled the 12 miles toward the couple's home in Stillwater, Washington, Hill intermittently flashed his high-beam headlights and drew close behind the other car, accelerating up to a high rate of speed on the poorly lit country roads. Both petitioner and Ingram testified they were frightened, having no idea how many people were in the other car or "what they were trying to prove." Upon reaching their residence in Stillwater, Ingram pulled to the side of the road to speak to two persons standing in a neighbor's driveway. Petitioner exited the vehicle, obtained his pistol from his home, and returned to the roadside. Meanwhile, Hill passed the parked vehicle, stopped farther down the road, and shut off the lights. After a few minutes, Hill turned the car around and drove back toward the Petrich-Ingram vehicle at which time petitioner aimed the pistol and fired the weapon. The bullet passed through the passenger side of the automobile hitting Hill in the arm. Petitioner and Ingram immediately called the police and notified them of the incident.

Prior to his trial for second-degree assault, petitioner moved under CrR 8.3(b) to dismiss the deadly weapon and firearm allegations in the information. The parties agreed that it would be appropriate for the court to hear the evidence in the case before ruling on the motion. At the conclusion of the trial, the court found that petitioner had "overreacted and used excessive force." Finding of fact No. 11. Petitioner had never previously been arrested or convicted of a crime, however, and the judge was convinced that the incident would not have occurred but for the misbehavior of the victim. Therefore, pursuant to CrR 8.3(b), the judge dismissed the mandatory sentencing allegations, stating his act to be "in the furtherance of justice" and the alternative to be cruel and unusual punishment. ¹ Conclusion of Law No. 1.

On April 1, 1977, the trial court orally rendered its judgment, deferring imposition of sentence for 2 years on condition petitioner serve 60 days in the King County Jail, make restitution to the victim, and pay a fine of $250 to the Washington State Crime Victims Compensation program. After pronouncing sentence, the court, in compliance with CrR 7.1, said to petitioner:

Mr. Petrich, since you have been found guilty of assault in the second degree, the Court should advise you you have a right to appeal, and you have thirty days to give notice and take appropriate steps. Your counsel, Mr. Finegold, can certainly advise you along those lines, and the Court can also advise you, if you do not have funds with which to employ counsel, the State will employ or appoint counsel for you or retain counsel for you.

(Italics ours.)

Subsequently, the following colloquy took place between the prosecuting attorney and the court:

MR. HAMILTON: I am afraid I don't recall whether Your Honor indicated he would have thirty days from today in which to enter notice of appeal. THE COURT: Yes, the rule says he must do it within thirty days. MR. HAMILTON: Yes, that was my understanding, although, I haven't thoroughly read the new rules on appeal, but I haven't read recently the new rules, but I think that is still the case. THE COURT: Yes. And Mr. Petrich, you do have a right of appeal, and notice should be given in thirty days.

(Italics ours.)

On April 13, 1977, counsel for petitioner and counsel for the State reappeared before the trial judge. The prosecutor stated at the outset:

The purpose of the hearing is simply to present findings of fact, conclusions of law as they relate to the judgment entered in this case, and also the order indicated by the Court orally, that it would dismiss pursuant to the rules, Criminal Rule 8.3(b), the provisions relating to the deadly weapon and firearms.

After the parties took their exceptions to the findings of fact, conclusions of law, and verdict, petitioner's counsel inquired about the judgment and sentence which had been rendered April 1:

MR. FINEGOLD: How about the judgment and sentence? MR. HAMILTON: Counsel has reminded me I haven't typed in the judgment and sentence. I believe your Honor was not here last week, or I was under the impression that you were not. THE COURT: No, that's right. You are right. MR. HAMILTON: So I am going to have to do the judgment and sentence as a nunc pro tunc order, and I don't have the proper nunc pro tunc phraseology on it there. I will bring that up this afternoon, indicating that the judgment relates to the date when the Court pronounced judgment. We had this week before last, wasn't it? MR. FINEGOLD: I believe it was on Friday, April 1. THE COURT: April 1. MR. FINEGOLD: If it reflects on April 1 date, it can wait until he brings up the other papers tomorrow. MR. HAMILTON: That was my intention . . .

(Italics ours.)

On April 14, 1977, the State presented and the judge signed an "Order Deferring Imposition of Sentence (Probation) ", which was filed the next day, April 15. The caption included the phrase "NUNC PRO TUNC", and at the bottom of the first page appeared the following typewritten sentence: "This judgment entered so as to appear of record as of April 1, 1977." The order also reflected the dismissal of the sentence enhancement allegations in the following language:

the defendant entered a plea of "Not Guilty" and the subsequent finding of guilty by the court on the 17th day of December, 1976, "guilty as to both counts," and the court having heard evidence and having ordered dismissal of the deadly weapon and firearm provisions pursuant to CrR 8.3(b).

(Italics ours.)

Because the State's proposed findings of fact and conclusions of law were not satisfactory to the court at the April 13 hearing, those matters were not submitted until April 25, 1977, along with an included "Order of Dismissal under CrR 8.3(b)". The findings, conclusions, and order were signed by the judge and entered that same day.

On May 16, 1977, the State filed an appeal from the April 25 order of dismissal under CrR 8.3(b), contending that the trial judge lacked authority to dismiss the sentence enhancement allegations. On May 23, 1977, petitioner filed a notice of appeal and cross appeal, and later moved to dismiss the State's appeal as not timely filed. The Court of Appeals, holding the State's appeal was timely, concluded the trial court was without the authority to dismiss the deadly weapon and firearm allegations.

The State argues that its appeal was timely because it...