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State v. Hubbard

October 28, 1996


Appeal from Superior Court of Pend Oreille County. Docket No: 92-1-00001-9. Date filed: 03/18/93.

PER CURIAM. Kyle Hubbard appeals restitution imposed following his conviction for second degree theft. Appellant's court-appointed counsel on appeal, having found no basis for a good faith argument on review, has filed a motion to withdraw. Pursuant to State v. Theobald, 78 Wash. 2d 184, 470 P.2d 188 (1970), and Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), the motion to withdraw must:

[1] be accompanied by a brief referring to anything in the record that might arguably support the appeal. [2] A

copy of counsel's brief should be furnished the indigent and [3] time allowed him to raise any points that he chooses; [4] the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. State v. Theobald, 78 Wash. 2d at 185, quoting Anders v. California, 386 U.S. at 744.

This procedure has been followed to the extent that appellant's counsel on appeal filed a brief with the motion to withdraw. Appellant was provided a copy of the brief and informed of his right to file a supplemental pro se brief; he has filed neither a pro se supplemental brief nor a notice of intent to file such a brief. Finally, we have examined the entire record to determine whether the appeal is wholly frivolous. Because the appeal presents a nonfrivolous issue, we deny the motion to withdraw.

Failure to Determine Restitution Within 60 Days of Sentencing

Requires Reversal of Restitution Order

The sole issue raised by appointed counsel is whether the record supports the restitution award of $1,500. Because we reverse the restitution order on other grounds, we need not resolve whether that issue is frivolous.

The restitution order was entered six months after Hubbard was sentenced. Under former RCW 9.94A.142(1), when restitution is ordered "the court shall determine the amount of restitution due at the sentencing hearing or within sixty days." The 60-day limit is mandatory. Failure to determine restitution within the 60-day limit calls for reversal of the restitution order. State v. Krall, 125 Wash. 2d 146, 881 P.2d 1040 (1994).

The Supreme Court recently held that Krall's interpretation of the 60-day limit is deemed to be what the statute meant since its enactment. Thus, the Court rejected the State's argument that Krall should apply prospectively only. State v. Moen, 129 Wash. 2d 535, 919 P.2d 69 (1996).

Here, restitution was determined six months after sentencing, well beyond the mandatory 60-day limit. Under Krall and Moen, the untimely restitution order must be reversed. Although Hubbard did not raise the 60-day limit objection below, an objection to an untimely restitution order may be raised for the first time on appeal. Moen, slip op. at 7-10.

Finally, under Moen, the record does not provide a basis for concluding that Hubbard's attorney waived any timeliness error by signing the order as "agreed." In Moen, the State argued that the restitution order was "agreed" because defense counsel signed the order and it was entered without a hearing. The Court disagreed for several reasons.

Although the sentencing Judge indicated his intent that the parties try to reach an agreement, nothing in the record indicated that happened. There was no plea bargain in which the parties agreed to restitution. The order itself did not refer to any agreement regarding restitution. In these circumstances, the Moen Court refused to find that defense counsel's signature on the order constituted an agreement sufficient to "determine" the amount of restitution within the 60-day limit.

So also here, nothing in the record indicates an actual agreement between the State and Hubbard. To the contrary, whereas the prosecutor argued at sentencing for $1,200 restitution, defense counsel argued that the evidence supported a much lower amount of $690. In addition, the restitution order itself does not refer to any agreement or stipulation between the parties. Instead, the order indicates that the State moved the court for entry of $1,500 restitution ($300 more than originally requested) and that the court determined the amount based upon its review of the record. In these circumstances, ...

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