Appeal from Superior Court of King County. Docket No: 94-1-03159-3. Date filed: 08/26/94. Judge signing: Hon. Robert Alsdorf.
Authored by Mary K. Becker. Concurring: Susan R. Agid, Ann L. Ellington.
The opinion of the court was delivered by: Becker
BECKER, J. -- Robert Duvall objects to a restitution order entered 257 days after sentencing. We apply the doctrine of equitable tolling and affirm. We also uphold the exceptional sentence Duvall received upon conviction for child molestation and assault of a child.
TIME LIMIT TO DETERMINE RESTITUTION
Duvall claims the order of restitution is void because the court imposed it beyond the 60-day time limit of former RCW 9.9A.142. *fn1 That statute required the sentencing court to "determine the amount of restitution due at the sentencing hearing or within sixty days." *fn2 The court below held a sentencing hearing on August 26, 1994. On that date, the court imposed restitution in an amount to be determined at a hearing scheduled for October 25. Duvall explicitly refused to waive his right to be present at the setting of restitution. Before the hearing, the State presented to Duvall's attorney a proposed order fixing the amount of restitution at $844.72. Believing the amount to be reasonable, the attorney signed the order on Duvall's behalf. The court then entered the order on October 19 without a hearing and in the absence of Duvall. This action occurred with six days remaining of the statutory 60-day time limit.
When Duvall learned of the restitution order months later, he moved through new counsel to vacate it. He alleged that the order was void because he had not authorized counsel to agree to it, and had not waived his right to be present. The court then held a hearing on May 10, 1995, with Duvall present. The court found that Duvall indeed had not waived his right to be present at the entry of the restitution order of October 19, and consequently set that order aside.
Because the 60-day time limit had elapsed by this time, Duvall contended that the court no longer had jurisdiction to impose restitution. The court reasoned, however, that the first order was voidable rather than void. Because several days of the 60-day period still remained at the time the court entered the first order, the court concluded that it was not too late to act within the 60-day period, and proceeded to enter a new restitution order in the same amount.
On appeal, Duvall adopts the language of the court below and asks us to hold that the first order was void, rather than voidable. Because the trial court granted Duvall's motion to vacate the first order, characterization of that order as void or voidable is a moot issue on appeal. The State here defends only the second order, which is the only order of consequence to Duvall.
With respect to the second order, neither Duvall's constitutional right to be present at sentencing, *fn3 nor CrR 3.4 requiring the presence of defendant at sentencing, is at issue. Duvall was present at the only restitution hearing that was held, and he had a chance to object to the only order currently in effect.
The more substantial question raised by Duvall is whether the second restitution order was void as a result of being entered after the 60-day time limit had elapsed. A court's power to award restitution derives wholly from statutes. *fn4 If the Legislature intended the 60-day period as a jurisdictional limit, then the court was without power to determine restitution after 60 days had expired. But if the Legislature intended the 60-period to operate as an ordinary statute of limitations, then the limit is subject to principles of waiver and estoppel, including the doctrine of equitable tolling. *fn5 The doctrine of equitable tolling permits a court to allow an action to proceed when Justice requires it, even though a statutory time period has nominally elapsed. *fn6
Nothing in the language, history, or prior interpretation of RCW 9.94A.142 suggests that the Legislature intended the 60-day period as an absolute jurisdictional bar. In the same statute that required the amount of restitution to be determined within 60 days, the Legislature also provided that the offender shall remain under the court's jurisdiction for up to 10 years, and during that time the court may modify the award. The Supreme Court decided in State v. Krall *fn7 that the 60-day limit was mandatory rather than directory, but did not characterize the limit as jurisdictional. The legal character of the time limit similarly was not at issue in State v. Duback, *fn8 in which this court vacated a restitution order entered after 60 days and described the order as "void". *fn9
The general policy underlying the restitution statute, as summarized by the Supreme Court in State v. Davison, *fn10 is to require the offender "to face the consequences of his criminal conduct." The court found that "the very language of the restitution statutes indicates legislative intent to grant broad powers of restitution." *fn11 The court declined to give the restitution statutes "an overly technical construction which would permit the defendant to escape from just punishment." *fn12
Accordingly, we hold that the Legislature did not intend to deprive the court of jurisdiction to enter a restitution order after 60 days.
Instead, the 60-day period operates like an ordinary statute of limitations, and a trial court may toll it ...