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State v. Allison

November 14, 1996

STATE OF WASHINGTON, APPELLANT,
v.
MARY E. ALLISON, RESPONDENT.



Appeal from Superior Court of Benton County. Docket No: 91-1-00286-3. Date filed: 10/04/95. Judge signing: Hon. Dennis D. Yule.

Authored by Dennis J. Sweeney. Concurring: Ray E. Munson, Philip J. Thompson.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. On September 13, 1991, Mary Allison pleaded guilty to theft in the first degree. She later enrolled in Columbia Basin College to become a registered nurse. After two years in school, the associate dean notified Ms. Allison that her conviction would block her from participating in any clinical program and that "a satisfactory State Patrol check [was] a condition of [Ms. Allison's] continued enrollment in the program."

On September 20, 1995, Ms. Allison moved to withdraw her guilty plea to theft in the first degree and enter a plea of guilty to theft in the third degree. On October 4, the court granted her motion and ordered the plea changed.

The State appeals and argues the court lacked authority to grant Ms. Allison's motion to withdraw her guilty plea to first degree theft and enter a guilty plea to third degree theft. We agree and reverse.

Discussion

A court may relieve a party from a final judgment, order, or proceeding for any reasons justifying relief from the operation of the judgment. CrR 7.8(b)(5). But the motion is subject to the strictures of RCW 10.73.090. CrR 7.8(b). That statute bars any motion collaterally attacking a judgment in a criminal case more than one year after the judgment becomes final. RCW 10.73.090(1). A "collateral attack" is any form of post-conviction relief other than a direct appeal and includes a motion to withdraw a guilty plea. RCW 10.73.090(2).

RCW 10.73.090 then bars Ms. Allison's motion to withdraw her guilty plea. Ms. Allison was convicted in 1991. She moved to withdraw her guilty plea in 1995. Her collateral attack is more than one year after the judgment became final. See RCW 10.73.090(3)(a) (judgment becomes final on the date it is filed with the clerk of the trial court). The court abused its discretion in allowing her to withdraw the guilty plea under CrR 7.8(b)(5). *fn1 Although, it is unclear on what basis the court allowed Ms. Allison to withdraw her guilty plea, the State is correct in that Ms. Allison's original motion based on RCW 9.95.240 is inapplicable. (CP 8-9) That statute does not apply to felonies committed on or after July 1, 1984. See RCW 9.95.900. For purposes of this memorandum, then, it is assumed the court allowed the withdrawal of the guilty plea based on CrR 7.8(b)(5).2 Although, it is unclear on what basis the court allowed Ms. Allison to withdraw her guilty plea, the State is correct in that Ms. Allison's original motion based on RCW 9.95.240 is inapplicable. (CP 8-9) That statute does not apply to felonies committed on or after July 1, 1984. See RCW 9.95.900. For purposes of this memorandum, then, it is assumed the court allowed the withdrawal of the guilty plea based on CrR 7.8(b)(5).3 Although, it is unclear on what basis the court allowed Ms. Allison to withdraw her guilty plea, the State is correct in that Ms. Allison's original motion based on RCW 9.95.240 is inapplicable. (CP 8-9) That statute does not apply to felonies committed on or after July 1, 1984. See RCW 9.95.900. For purposes of this memorandum, then, it is assumed the court allowed the withdrawal of the guilty plea based on CrR 7.8(b)(5).4 Although, it is unclear on what basis the court allowed Ms. Allison to withdraw her guilty plea, the State is correct in that Ms. Allison's original motion based on RCW 9.95.240 is inapplicable. (CP 8-9) That statute does not apply to felonies committed on or after July 1, 1984. See RCW 9.95.900. For purposes of this memorandum, then, it is assumed the court allowed the withdrawal of the guilty plea based on CrR 7.8(b)(5).5 See State v. Ellis, 76 Wash. App. 391, 394, 884 P.2d 1360 (1994) (an appellate court reviews court decisions under CrR 7.8(b) for an abuse of discretion).

We reverse.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Sweeney, C.J.

WE CONCUR:

Munson, J. ...


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