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State v. Hillman

February 10, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
LAURA HILLMAN, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-01753-0. Date filed: 10/12/95. Judge signing: Hon. Gerald L. Knight.

PER CURIAM. Appellant challenges an amended order of restitution because it was entered after expiration of the former statutory limit of 60 days. Because the original order was entered ex parte and was not a full and final determination of restitution, the new 180-day limit applies retroactively. We therefore affirm the restitution order.

FACTS

Laura Hillman pleaded guilty to three counts of unlawful issuance of a bank check, for checks written during October 1993. The affidavit of probable cause alleged that she had written over 150 checks totaling approximately $15,000. In the plea agreement, Hillman agreed to make restitution on all uncharged counts.

Sentencing was held June 2, 1995. The trial court set the restitution in an amount to be determined within 60 days." A partial ex parte restitution order was filed July 21, 1995 in the amount of $512.76. Hillman filed a formal objection to the order, but stated no grounds. A restitution hearing was held October 4, 1995. Hillman objected to the hearing because it was being held beyond the 60-day limit. The court held the 180-day limit applied retroactively, and entered an amended order of $13,452.62. Hillman appeals the amended order.

Analysis

Hillman argues that the ex parte order should be considered final and the amended restitution order should be vacated because it was not filed within the 60-day limit. She further argues that the ex parte order should be deemed acknowledged even though she filed an objection, because she did not request a restitution hearing and did not object to the amount. Hillman argues her situation is similar to that in State v. Ryan, 78 Wash. App. 758, 763, 899 P.2d 825, review denied, 128 Wash. 2d 1006, 907 P.2d 296 (1995), where one of the defendants entered a partial objection and the portion not objected to was deemed acknowledged by the Court of Appeals. Hillman further suggests that because the ex parte order is valid, the retroactive application of the new 180-day limit for restitution hearings does not apply in her case.

The State accepts Hillman's concession that the original order is valid and argues that under its continuing authority, the court can modify the restitution amount under 9.94A.142(1). Alternatively, the State argues that if the original order is not valid, the 180-day limit can be retroactively applied consistent with the new statute.

I. The Ex Parte Order Did Not Determine Restitution

Restitution is "determined" and an order considered final within the meaning of RCW 9.94A.142 either through an admission or acknowledgment of the defendant, or by preponderance of evidence in an evidentiary proceeding. Ryan, 78 Wash. App. at 761. The State Supreme Court resolved the issue of when an ex parte order is final and enforceable in State v. Moen:

"An ex parte restitution order is final and enforceable only if the defendant does not object . . . ." 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). State v. Moen, 129 Wash. 2d 535, 541, 919 P.2d 69 (1996) (quoting Ryan, 78 Wash. App. at 762).

Hillman's contention that the ex parte order should be considered valid and final fails because when entered, the order was clearly only a partial order, and because Hillman filed a timely objection. Hillman pleaded guilty knowing that her restitution obligation could be as high as $15,000 and would include claims from a significant number of victims. The ex parte restitution order for $512.76 included claims from only three victims, and included the following language: "NOTE: TO BE AMENDED/EXTENSIVE INVESTIGATION NEEDED." Hillman filed a timely objection, which was general in its terms, so she cannot now argue that she acknowledged or admitted to the amount. Because no hearing on her objection was held within the 60-day limit, the ex parte order (whatever its validity) does not determine restitution. See Moen, 129 Wash. 2d at 541.

II. The 180-Day Limit Applies Retroactively To The Amended Order

In response to the Krall *fn1 decision, the Legislature amended RCW 9.94A.142 in 1995, providing a 180-day limit within which to determine restitution. The new limit applies retroactively when each of three conditions is met: (1) the court failed to set restitution within 60 days of sentencing as required by RCW 9.94A.140 prior to the effective date of the amendment; (2) the defendant was sentenced no more than 365 days before the effective date; and (3) the defendant is not unfairly prejudiced by the delay. Laws of 1995, ch. 231, sec. 5. Retroactive application was upheld by the Washington State Supreme Court in State v. Hennings, 129 Wash. 2d 512, 529, 919 P.2d 580 (1996).

Here, the trial court did not determine Hillman's restitution until after the 60-day limit of the former statute. The effective date of the amendment was July 23, 1995; she was sentenced June 2, 1995, well within the 365-day window established for retroactive application. Hillman has not argued prejudice here, and none is readily observable. The restitution amount ultimately ordered was lower than the amount anticipated at the time of the plea, the order was entered within four months of sentencing, and some delay is understandable in this circumstance where ...


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