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State v. Capello

February 10, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
RICARDO ANTHONY CAPELLO, APPELLANT.



Appeal from Superior Court of King County. Docket No: 91-1-03478-4. Date filed: 07/24/95. Judge signing: Hon. William L. Downing.

Petition for Review Denied September 3, 1997,

PER CURIAM. Ricardo Capello appeals from the trial court's order denying his motion for relief from judgment. He argues that a restitution order entered 80 days after sentencing is void and that the trial court therefore erred in refusing to vacate the order 3 1/2 years after entry. Because an untimely restitution order is not void and Capello has not identified any other basis warranting collateral relief, the trial court did not abuse its discretion in refusing to vacate the restitution order under CrR 7.8(b). Accordingly, we affirm.

Capello was originally charged with one count of first degree rape, with a deadly weapon allegation, and one count of first degree kidnapping, with a sexual motivation allegation. On September 12, 1991, he pleaded guilty to the kidnapping charge in exchange for dismissal of the rape charge. On October 11, 1991, the court imposed a 144-month standard-range sentence. Under the terms of the plea agreement, Capello agreed to pay restitution to the victim "in full," and the sentencing court ordered that restitution be determined on a date to be set; Capello waived his presence at the restitution hearing. On December 30, 1991, the court entered a restitution order for $6,426.36. Capello did not appeal.

On June 15, 1995, Capello filed a motion for relief from judgment, seeking vacation of the restitution order under CrR 7.8(b)(4) and (b)(5). Capello argued that the restitution order was void because it was filed 80 days after sentencing, in violation of former RCW 9.94A.142(1) and State v. Krall, 125 Wash. 2d 146, 881 P.2d 1040 (1994). On July 24, 1995, the trial court denied the motion, concluding that it had not been brought within a reasonable time as required by CrR 7.8(b).

Capello's appeal was stayed pending the Supreme Court's decisions in State v. Hennings, 129 Wash. 2d 512, 919 P.2d 580 (1996), In re Fleming, 129 Wash. 2d 529, 919 P.2d 66 (1996), State v. Moen, 129 Wash. 2d 535, 919 P.2d 69 (1996), and State v. Hunsicker, 129 Wash. 2d 554, 919 P.2d 79 (1996). After these decisions were filed, the stay was lifted and the parties submitted supplemental briefing. A commissioner referred the case for decision without oral argument. RAP 11.6.

Capello argues that because the restitution order was entered beyond the 60-day time limit established by former RCW 9.94A.142(1), the sentencing court lacked subject matter jurisdiction and the order is therefore void. See CrR 7.8(b)(4). A trial court's ruling under CrR 7.8(b) is reviewed solely for an abuse of discretion. See State v. Aguirre, 73 Wash. App. 682, 686, 871 P.2d 616, review denied, 124 Wash. 2d 1028, 883 P.2d 326 (1994).

Our Supreme Court has expressly rejected the contention that a sentencing court lacks subject matter jurisdiction to impose restitution beyond the 60-day limit authorized by former RCW 9.94A.142(1). State v. Moen, 129 Wash. 2d 535, 545, 919 P.2d 69 (1996); accord, In re Fleming, 129 Wash. 2d 529, 533, 919 P.2d 66 (1996). A criminal penalty imposed without statutory authority does not implicate the court's jurisdiction. Moen, 129 Wash. 2d at 545. Under Moen, the restitution order in this case was invalid and therefore voidable, not void. Moen, 129 Wash. 2d at 542.; cf. State v. Duvall, 928 P.2d 459 (1996) (Legislature did not intend to deprive court of jurisdiction to enter restitution order after 60 days).

Relying on a series of older decisions, Capello suggests that this court should decline to follow the analysis in Moen and hold that statutory authority and jurisdiction "are one and the same." The Moen court, however, expressly overruled all prior inconsistent decisions on this point. Moen, 129 Wash. 2d at 535. This court is bound by the decision in Moen. See State v. Gore, 101 Wash. 2d 481, 487, 681 P.2d 227 (1984). The trial court did not abuse its discretion in denying Capello's motion to vacate the restitution order under CrR 7.8(b)(4).

Apparently relying on CrR 7.8(b)(5), Capello next argues that even if the restitution order was not void, the trial court nonetheless erred in denying the motion to vacate as untimely. He maintains that because he challenged the untimely restitution order within one year of Krall, the motion was brought within "a reasonable time" as required by CrR 7.8(b). To find otherwise, Capello reasons, would violate the policy of ensuring "that sentences are in compliance with the existing sentencing statutes, notably former RCW 9.94A.142(1)." Moen, 129 Wash. 2d at 546-47.

Relief is warranted under CrR 7.8(b)(5) only upon a showing of "extraordinary circumstances" not covered by any other section of the rule. State v. Aguirre, 73 Wash. App. at 688; State v. Cortez, 73 Wash. App. 838, 841-42, 871 P.2d 660 (1994). Generally, "extraordinary circumstances" must relate to irregularities that are "extraneous to the action of the court or go to the question of the regularity of the proceedings." (Citations omitted.) Aguirre, 73 Wash. App. at 688; see also State v. Cortez, 73 Wash. App. at 840 (vacation under CrR 7.8(b)(5) should not be based on circumstances existing at the time the judgment is entered).

Capello correctly notes that under Moen, an untimely restitution order may be challenged for the first time on appeal, even though the error is neither jurisdictional nor constitutional and even though there is no showing of prejudice. Moen, 129 Wash. 2d at 546-48. Such a rule serves to ensure that sentences are in compliance with existing sentencing statutes. Moen, 129 Wash. 2d at 547.

The Moen court expressly noted, however, that the rules for considering issues raised for the first time on appeal differ "significantly" from those that apply when, as here, a defendant is seeking collateral relief. Moen, 129 Wash. 2d at 547 n.5. In In re Fleming, 129 Wash. 2d 529, 919 P.2d 66 (1996), the court held that even though an untimely restitution order may constitute restraint, it does not rise to the level of a "fundamental defect resulting in a complete miscarriage of Justice" that would permit collateral relief by means of a personal restraint petition. Fleming, 129 Wash. 2d at 533. In such circumstances, the policy favoring the finality of litigation is primary:

We place this additional burden on prisoners' access to collateral relief because such relief "'undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders.'" (Citations omitted.) Fleming, 129 Wash. 2d at 532. Collateral relief is not appropriate where the sentencing court had the authority to order restitution, but did so merely in an untimely manner. Fleming, 129 Wash. 2d at 534.

Because an untimely restitution order does not constitute "fundamental defect" that results in a complete miscarriage of Justice, it cannot reasonably be characterized as an "extraordinary circumstance" that warrants collateral relief under CrR 7.8(b)(5). Accordingly, we need not decide whether Capello's motion was filed within a reasonable time for purposes of CrR ...


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