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State v. Mollichi

May 8, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
GEOFFRAY MOLLICHI, PETITIONER.



Appeal from Superior Court, King County. 93-8-04652-1.

Authored by Philip A. Talmadge. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders.

The opinion of the court was delivered by: Talmadge

EN BANC

TALMADGE, J. -- In this case, we must decide if the $300 restitution order entered against defendant Geoffray Mollichi is valid even though it was not entered at Mollichi's Disposition hearing, as prescribed in Washington's Juvenile Justice Act. We also must determine if Mollichi could waive the Act's requirement for a Disposition hearing. We hold that a restitution order not timely entered at a Disposition hearing as set forth in RCW 13.40.150(3)(f) and RCW 13.40.130(8)/JuCR 7.12(a) is invalid unless the juvenile waives the statutory requirements. The State here did not meet the Act's requirements for a Disposition hearing and Mollichi did not waive those statutory requirements. We vacate the restitution order.

ISSUES

1. Are the time frame and procedure for a Disposition hearing under RCW 13.40.150(3)(f) mandatory with respect to restitution?

2. Can a juvenile waive the statutory requirements for a Disposition hearing?

3. Did Mollichi waive the statutory requirements a Disposition hearing with respect to the restitution?

FACTS

Geoffray Mollichi, a juvenile, took a motor vehicle without the owner's permission on the night of June 27, 1993. While fleeing arrest, he leaped from the top of one building onto the roof of an adjacent residence, causing $300 damage to the roof tiling of the residence.

The State charged Mollichi with taking a motor vehicle without permission (RCW 9A.56.070); malicious mischief in the second degree (RCW 9A.48.080(1)(a)); and resisting arrest in the second degree (RCW 9A.76.040). The juvenile court entered an Order Waiving Hearing and Setting for Plea that indicated the parties had waived a case setting hearing "pursuant to the following agreement":

The respondent [Mollichi], having received discovery and discussed the case and the elements of the offense with counsel, has decided to enter a plea of guilty . . . to the offense(s)

charged in the information to be amended on motion of the State as listed below:

04652-1: TMVWOP [Taking a Motor Vehicle Without the Owner's Permission] and MM 3-D [Malicious Mischief in the Third Degree] Supplemental Br. of Pet'r at App. C. By this Order, the State agreed to reduce the charge of second degree malicious mischief, a class C felony, to third degree malicious mischief, a misdemeanor, to dismiss the resisting arrest charge, and to ask for restitution. Mollichi, his attorney, and the prosecutor all signed this Order.

The State then filed an amended information to reflect the reduced malicious mischief charge. A Disposition hearing occurred on September 23, 1993 before King County Superior Court Commissioner Maurice Epstein, where Mollichi entered his Statement of Juvenile Offender on Plea of Guilty. He pleaded guilty to taking a motor vehicle without permission and to the misdemeanor malicious mischief charge. He expressed his understanding the prosecuting attorney would recommend to the court that he pay restitution, but no specific amount was specified for the restitution, nor was there any agreement on when restitution would be set. Mollichi's attorney indicated restitution was appropriate: "Clearly [Mollichi] needs to be accountable; I think the days that he has done and the community service hours that will be ordered and the restitution that will be ordered all serve the purpose of accountability." Report of Proceedings (Disposition) at 18. The Commissioner imposed standard sentences for the two offenses.

The State then addressed the restitution question: "On the restitution in that case, Your Honor, apparently, there is some ongoing work being done to this roof, and we request that restitution be left open for an additional 30 days, so that we may determine what the final amount is going to be there." Report of Proceedings (Disposition) at 15-16. Mollichi's attorney replied: "No objection to leaving the restitution amount open. We would ask that the State note a hearing within 30 days, if they are seeking restitution on any other cause number." Report of Proceedings (Disposition) at 19. The Commissioner entered an Order of Disposition containing the handwritten notation, "Restitution shall be determined w 30 days." Clerk's Papers at 10. *fn1

The State filed notice for a hearing on the restitution question on October 22, 1993, setting the "restitution hearing" for November 22, 1993, 60 days after the Disposition hearing. At that hearing, held before King County Superior Court Judge Carol Schapira, Mollichi's attorney asked the court to declare the restitution request untimely because the restitution amount had not been determined within the 30-day period specified in the Disposition order. The trial court held the restitution request timely because the State had noted the restitution hearing within 30 days of the Disposition order, and ordered Mollichi to pay $300. Mollichi then filed a timely notice of appeal to the Court of Appeals.

On appeal, Mollichi argued the trial court had no authority to enter a restitution order against him at any time other than at the Disposition hearing because RCW 13.40.150(3)(f) states: "Before entering a Dispositional order as to a respondent found to have committed an offense, the court shall hold a Disposition hearing, at which the court shall . . . determine the amount of restitution owing to the victim, if any," and the trial court did not determine the amount of the restitution at the Disposition hearing on September 23, 1993. (Emphasis added.) The Court of Appeals, Division One, affirmed the trial court, holding the statutory language is directory rather than mandatory. The Court of Appeals based its analysis largely on the grounds that restitution plays a central role in ...


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