State v. Tindal, 19600-6-I
| Decision Date | 20 January 1988 |
| Docket Number | No. 19600-6-I,19600-6-I |
| Citation | 748 P.2d 695,50 Wn.App. 401 |
| Parties | STATE of Washington, Respondent, v. James Michael TINDAL, Appellant. |
| Court | Washington Court of Appeals |
Dennis Benjamin, Washington Appellate Defender, Seattle, for appellant James Michael Tindal.
William Jaquette, Sally F. Stanfield, Deputy Pros. Atty., Seattle, for respondent State.
James Michael Tindal appeals the amount of restitution imposed in his sentence for first degree theft.
Tindal pleaded guilty to the charge and the plea agreement contained a stipulation that the "real facts" for purposes of sentencing were as set forth in the certificate of probable cause. Essentially they are that as a result of Tindal's employment with Ace Fireworks, he was issued a company Union Oil credit card which he failed to return when his employment terminated. Between July 12, 1985 and September 30, 1985, Tindal ran up charges on the credit card amounting to $21,251. At the sentencing hearing, Tindal admitted to incurring charges against the card in the amount of $5,000. The court ordered restitution in the amount of $25,666.39.
Tindal initially argues that there is insufficient evidence to establish the amount of credit card loss at $25,666.39. 1 From the record before us we agree.
RCW 9.94A.370(2) provides:
In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence. Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390(2)(c), (d) and (e).
In the case at bar, the certificate of probable cause set forth the amount of credit card loss as $21,251. Since this was incorporated by reference in the plea agreement it becomes fact. Accordingly, the preponderance of the evidence established $21,251 as the amount of credit card loss.
The discrepancy between that amount and the amount the trial court imposed as restitution appears to be for charges made at another gas station. RCW 9.95.210 limits the scope of restitution to the precise offense as charged. State v. Mark, 36 Wash.App. 428, 675 P.2d 1250 (1984). Restitution may not be based on acts connected with the crime charged when those acts are not part of the charge. State v. Ashley, 40 Wash.App. 877, 700 P.2d 1207 (1985).
In the alternative, Tindal argues that the amount of restitution cannot exceed the maximum fine allowed for the crime charged. RCW 9A.20.030 provides:
(1) If a person has gained money or property or caused a victim to lose money or property through the commission of a crime, upon conviction thereof or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement, the court, in lieu of imposing the fine authorized for the offense under RCW 9A.20.020, may order the defendant to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain or victim's loss from the commission of a crime. Such amount may be used to provide restitution to the victim at the order of the court. It shall be the duty of the prosecuting attorney to investigate the alternative of restitution, and to recommend it to the court, when the prosecuting attorney believes that restitution is appropriate and feasible. If the court orders restitution, the court shall make a finding as to the amount of the...
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