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Washington v. Moen

filed: July 18, 1996.


Appeal from Superior Court, Certiorari to King (93-1-05063-8 & 92-1-04679-9) County; Honorable Brian Gain, Judge. Judgment Date: 2-14-94.

Madsen, J., Smith, Johnson, Alexander, Sanders, J.j., concurring. Talmadge, J. (dissenting by separate opinion) Durham, C.j., Dolliver, Guy, J.j. dissenting.

Author: Madsen


MADSEN, J. -- This case involves the question of whether the failure to object to an untimely restitution order issued under former RCW 9.94A.142(1) waives appellate review. We conclude that this timeliness challenge may be raised for the first time on appeal and reverse the order setting restitution.


On July 29, 1992, Defendant Christopher C. Moen was charged with theft in the first degree and robbery in the first degree with a deadly weapon allegation. On January 7, 1993, a jury returned a verdict of guilty on these charges. On February 11, 1994, Moen was sentenced within the standard range. At the sentencing hearing, the State asked the court to set restitution. Both Moen and his attorney stated Moen's desire to pay restitution. The trial court concluded that restitution would be "substantial," but did not, at that time, set a restitution hearing or a restitution amount. Videotape Recorded Proceedings (VRP) at 469-70. The trial judge said to State's counsel: "I will follow my normal procedure, and that's to leave it up to you and [defense counsel]. If you can't agree, then we'll set a hearing date." VRP at 470. On February 14, 1994, a judgment and sentence was filed which included an order that restitution be paid, with an amount to be set at a future date. No date was filled in. Moen waived his presence at the restitution hearing (if required).

The State and Moen agree that there is no clerk's minute entry indicating that a restitution hearing was held. On May 13, 1994, over 60 days after the sentencing hearing, a restitution order, dated May 4, 1994, and signed by Judge Gain, was filed in which the court set restitution in the total amount of $16,566.79. In its certification, the Court of Appeals refers to this order as a "stipulated restitution order," and the State refers to it as an "agreed order." Br. of Resp't at 2, 5. The State says that the "agreed order" was signed by defense counsel. Defense counsel's signature appears below "Copy received; Notice [of] Presentation waived." Clerk's Papers (CP) at 70. Nothing in the order indicates it is an "agreed order" or a "stipulated order." The record does not disclose any objection made by the defense to the restitution order, and Moen's brief does not claim any objection was made. Moen appealed from the judgment and sentence, challenging the restitution order as untimely. This court accepted certification of the matter from Division One of the Court of Appeals.


Former RCW 9.94A.142(1) provided in relevant part: "When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days." In 1994, this court issued a unanimous opinion holding that the sixty-day time limit was mandatory, not directory. State v. Krall, 125 Wash. 2d 146, 881 P.2d 1040 (1994). In Krall, the judgment and sentence did not set restitution, but provided that if the State sought restitution, it "shall be by motion and hearing.'" Id. at 148. The State did not seek a restitution hearing until over 60 days after sentencing. 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 the 60-day time limit. Moen argues that Krall and former RCW 9.94A.142(1) mandate reversal of the restitution order entered in his case. The State acknowledges Krall, but argues that the court's decision in Krall should be applied prospectively only.

The rule established by this court is that where a statute has been construed by the highest court of the state, the court's construction is deemed to be what the statute has meant since its enactment. In other words, there is no question of retroactivity. In re Vandervlugt, 120 Wash. 2d 427, 436, 842 P.2d 950 (1992); In re Moore, 116 Wash. 2d 30, 37, 803 P.2d 300 (1991); State v. Darden, 99 Wash. 2d 675, 663 P.2d 1352 (1983). None of the cases upon which the State relies for support justify a different result in this case. Rather than addressing the question of "retroactive" application of a decision initially construing the meaning of a statute, the cases cited by the State involve principles of retroactivity-prospectivity of new rules. In Cascade Security Bank v. Butler, 88 Wash. 2d 777, 567 P.2d 631 (1977), for example the court was asked to decide whether its decision, which overruled a prior decision of the court, was to be given retroactive application. Likewise, the issue presented in In re Marriage of Ortiz, 108 Wash. 2d 643, 740 P.2d 843 (1987), was whether the court's prior decision in In re Marriage of Edwards, 99 Wash. 2d 913, 665 P.2d 883 (1983), approving escalation clauses in child support awards, would apply retroactively. While Edwards did discuss whether use of such clauses was consistent with the language of former RCW 26.09.100, the court's approval of the clauses did not require the court to declare the meaning of that statute. Thus, the court's decision in Ortiz regarding retroactivity of its decision in Edwards did not involve the retroactivity of the court's construction of any statute.

Unlike the circumstances in the cases cited by the State, in Krall this court declared the meaning of RCW 9.94A.142(1). Accordingly, RCW 9.94A.142(1) cannot be given only prospective effect as the version of the statute which applies in this case has always mandated that restitution be set within 60 days of sentencing.*fn1

Next, the State argues that Defendant Moen waived any timeliness error by signing an "agreed order" to pay restitution; thus, appellate review is precluded because of his failure to object to the "agreed order." It is unclear what the State means when it refers to the order as "agreed." The record does not reflect any actual agreement between the State and the defense. While the defendant expressed a desire to pay restitution, it was not part of any plea agreement. The defendant was convicted following a jury trial. Further, RCW 9.94A.142(2) requires that the judge order restitution "whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property...." Thus, the court was required to order restitution, and Moen's stated willingness to pay restitution did not make any difference.

Nor does the restitution order recite any agreement or stipulation. The order states that "the court ordered payment of restitution as a condition of sentencing" and that "the Court has determined that the following persons are entitled to restitution" and then lists the victims and amounts of restitution. CP at 69. Moen had waived his presence at any restitution hearing, and the record does not reveal that any hearing was held. Defense counsel signed the order, but only as to copy received and notice of presentation waived.*fn2 While comments by the trial judge at sentencing indicate his intent that the parties try to reach agreement before setting a restitution hearing, nothing shows whether that is what actually happened.

The order in this case is similar to defendant Taton's order in State v. Ryan, 78 Wash. App. 758, 762, 899 P.2d 825, review denied, 128 Wash. 2d 1006, 907 P.2d 296 (1995). At sentencing, the court ordered Taton to pay restitution in an amount to be determined by separate order. Six weeks after the sentencing the State filed an ex parte order fixing restitution. Two weeks after the order was signed the defendant filed his objection to the amount. Initially, the Court of Appeals observed that restitution may be "determined" for purposes of RCW 9.94A.142(1) either through an admission or acknowledgment of the defendant or by a preponderance of evidence in an evidentiary proceeding. Ryan, 78 Wash. App. at 761. As the Court of Appeals noted, Taton had not agreed to the amount of restitution, which was determined ex parte, nor did the order establish a deadline by which the defendant was required to object. Id. at 762. "An ex parte restitution order is final and enforceable only if the defendant does not object...." Id. at 762. Because the order was open-ended and the defendant could object even a year after entry, the ex parte order did not constitute an agreement or acknowledgment of the restitution amount sufficient to determine the amount of restitution within the meaning of RCW 9.94A.142(1). Id. at 762.

In this case, as in Ryan, the amount of restitution was unknown at the time of sentencing and needed to be "determined" as required by RCW 9.94A.142(1). Restitution was finally determined three months after the sentencing hearing through an ex parte order prepared by the State. Like the Ryan court, we are not convinced on this record that the order is an "agreed" or "stipulated" order in the sense that the parties reached an agreement as to the restitution amount after consultation and negotiation. We conclude, instead, that the most that should be said about the order is that entry of the order was not contested.*fn3

Most importantly, the order in this case was entered some three months after the sentencing hearing. In Krall, the order was invalid because it was too late when entered. We will not construe an uncontested order entered after the mandatory 60-day period of former RCW 9.9A.142(1) had passed as a waiver of that timeliness requirement; it was invalid when entered.

We are aware that one effect of holding that restitution is barred when the order is entered too late is that the victim of the offense does not receive compensation under the restitution statutes. That result necessarily follows in each case where the State's delay precludes compliance with the mandatory time limit and defendant has not waived a timely determination of the amount of restitution, as in this case. Our unanimous holding in Krall recognizes that the statutory time mandate prevails over victims' rights to restitution. In Krall we examined the statutory scheme and the legislative history of the restitution statute, and concluded that when the Legislature said restitution shall be determined within sixty days of sentencing, that is what it meant. Krall, at 148-49. Despite the dissent's urging that we interpret the former RCW 9.94A.142 in light of the facts of this case, our decision in Krall is to the contrary.

The principle that time limits exist which may bar compensation to injured persons is not a novel concept in our jurisprudence. At some point, rights will be cut off. It is inappropriate to hold a defendant accountable by imposing restitution in violation of former RCW 9.94A.142 in order to "enforce" victims' rights, as the State urges us to do, when the State failed in its burden to comply with the statutory 60-day time requirement. Although the dissent accepts the State's argument and makes an impassioned plea for the victim, Washington courts have recognized that the criminal justice system is not a substitute for a civil judgment against a criminal defendant. For example, in State v. Martinez, 78 Wash. App. 870, 881, 899 P.2d 1302 (1995), review denied, 128 Wash. 2d 1017 (1996), a decision postdating the statutes and the constitutional amendment relied upon by the dissent, the court plainly and accurately said that "compensation is not the primary purpose of restitution, and the criminal process should not be used as a means to enforce civil claims." See also State v. Barr, 99 Wash. 2d 75, 79, 658 P.2d 1247 (1983).

It is also in the victim's best interest to have restitution set in a timely fashion under RCW 9.94A.142, when evidence of loss is fresh and the victim's need often at its greatest. Under former RCW 9.94A.142 it was accordingly imperative that the State obtain a timely restitution order both to serve the victim's interest and to comply with the Legislature's mandate that the amount of restitution be determined within 60 days of sentencing.

Finally, the State argues that Moen's failure to object precludes appellate review.*fn4 As the State correctly points out, the general rule is that issues may not be raised for the first time on appeal. However, there are exceptions to the rule. For example, RAP 2.5(a) provides that a party may raise certain errors for the first time on appeal including lack of trial court jurisdiction and manifest error affecting a constitutional right. RAP 2.5(a). Moen does not claim a constitutional right is involved, and there appears to be none. He ...

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