Appeal from Superior Court, King (92-1-04679-9) County; Honorable Michael J. Fox, Judge. Judgment Date: 5-6-94.
Madsen, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Talmadge, J.j., concurring. Sanders, J., (dissenting by separate opinion), Alexander, J., dissenting.
MADSEN, J. -- This case involves the question of whether an order of restitution, pursuant to defendant's plea agreement in which the defendant agreed to pay restitution in a specific amount, violates the 60-day time period in former RCW 9.94A.142(1), where entry of the order occurred after that period had passed. We conclude that the statutory requirements have been satisfied and affirm the restitution order.
On July 24, 1992, Defendant Billy Joe Hunsicker was charged with three counts of forgery resulting from his forging three checks on another man's bank account. The certification for determination of probable cause alleged Hunsicker forged a total of eight checks in the total amount of $1,800.00.
On October 2, 1992, Hunsicker pleaded guilty. He signed a plea agreement the same day, which stated in part that he "is to pay full restitution reflected in the Certification for Determining probable cause. . . .", and the State agreed not to file charges on the five remaining check forgery allegations. Clerk's Papers (CP) at 15. Hunsicker's statement of defendant on plea of guilty recited that the State agreed not to file additional charges but Hunsicker would have to pay restitution on those uncharged counts.
A sentencing hearing was held November 6, 1992, and the judgment and sentence form signed by the judge ordered that restitution was to be set at a future restitution hearing, but no date was set for the hearing. Hunsicker waived his presence at that hearing. On April 19, 1993, an amended judgment and sentence was entered nunc pro tunc to correct an error in the earlier judgment and sentence which had mistakenly stated that Hunsicker was guilty on only one count of forgery rather than three.
On May 5, 1993, a year and a half after the sentencing hearing, a restitution hearing was held. Defendant was not present. Defense counsel objected to entry of a restitution order on the grounds that the restitution statute required restitution to be set within 60 days of the judgment and sentence. The trial court rejected the argument, and ruled that the statutory time limit did not apply in light of Hunsicker's plea agreement.
Hunsicker appealed from the restitution order. The Court of Appeals, Division I, stayed the appeal pending this court's decision in State v. Krall, 125 Wash. 2d 146, 881 P.2d 1040 (1994). Subsequently, Division I certified the case to this court, which accepted certification.
Hunsicker argues that because his sentencing hearing was held in November 1992, but his restitution hearing was not held until May 1994, former RCW 9.94A.142(1)'s 60-day time limit has been violated and this court's recent decision in Krall requires the restitution order be reversed. The State argues, among other things, that Krall is inapposite and Hunsicker is bound by his plea agreement to pay restitution.*fn1
In Krall, the judgment and sentence did not set restitution but provided that if the State elected to seek restitution it should do so by motion and hearing. The State did not seek a restitution hearing until over 60 days after sentencing. The Defendant raised the timeliness issue at the hearing, appealed, and then sought review of an adverse Court of Appeals decision. This court reversed the restitution order because of the failure to comply with former RCW 9.94A.142(1).
The circumstances presented in Krall differ significantly from the present case. Specifically, the defendant in Krall entered no agreement to pay restitution; whereas here, Hunsicker reached a plea agreement with the State promising to pay restitution for all of the counts of forgery charged in the State's information in exchange for the State's agreement to drop several counts. Additionally, the judgment and sentence in Krall did not set restitution, but provided that if the State sought restitution, it "'shall be by motion and hearing.'" Krall, 125 Wash. 2d at 148. In contrast, Hunsicker signed a plea agreement which stated that he "is to pay full restitution reflected in the Certification for Determining probable cause. . . ." CP at 15. That document listed an exact amount, $1,800. ...