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State v. D.S.

May 27, 1997

[D.S. *FN1], DOB: 11-04-80, APPELLANT.

Appeal from Superior Court of King County. Docket No: 95-8-02482-5. Date filed: 07/26/95. Judge signing: Hon. Norma S. Huggins.

PER CURIAM. After D.S. was ordered to pay less than the full amount of restitution for wrecking a vehicle he and a companion took without permission, the trial court vacated his restitution order because it was inconsistent with the restitution order of his co-respondent, H.H. *fn2 A second Judge entered a new restitution order requiring D.S. to pay full restitution and made the obligation joint and several with H.H. We hold that the original sentencing Judge had the authority under CrR 7.8 to vacate the original order, but only to correct any clerical errors. The court could not change its mind and order D.S. to pay full restitution. We, therefore, reverse and remand.

D.S. and a companion, H.H., stole and wrecked Larry Warrick's Honda Accord. They were both arrested and charged with one count of taking a vehicle without permission. D.S. was also charged with one count of attempting to elude a pursuing police vehicle.

D.S. pled guilty to the charges. At a restitution hearing held on June 9, 1995, Warrick claimed a loss of $1,596.47, but D.S. argued that he was only 14 years old and had never held a job, so Judge Marsha Pechman ordered him to pay only $500 in restitution. No one mentioned D.S.'s co-respondent, H.H, during the restitution hearing. Nevertheless, the Judge signed an order indicating that D.S.'s obligation was to be "joint & several with co-respondent [H.H.]."

On June 23, 1995, Judge Pechman found H.H. guilty and ordered him to pay full restitution to Warrick. Four days later, H.H. asked the court to reconsider the restitution order entered against D.S. In response, the court, "on its own motion," set a hearing to reconsider D.S.'s restitution order, to be held jointly with H.H. *fn3

At the hearing to reconsider the order, Judge Pechman explained that when she ordered D.S.'s restitution, she did not have H.H.'s case before her. She also indicated it was her practice when she ordered restitution in an amount less than that requested, to make the obligation a sole obligation, and that D.S.'s restitution order was entered in error. Therefore, under CrR 7.8(b)(5), *fn4 Judge Pechman vacated the earlier restitution order entered against D.S., recused herself, and set the matter on for a hearing before another Judge.

D.S.'s second restitution hearing was held on July 26, 1995, before Judge Norma Huggins. D.S. argued that H.H.'s motion for reconsideration was improper and, therefore, the court should not reconsider his restitution. But Judge Huggins disagreed and reconsidered the restitution orders because Judge Pechman herself had set the motion on the calendar and had indicated in the file that the inconsistent restitution orders were entered in error. Judge Huggins then ordered D.S. to pay Larry Warrick $1,596.47, the full amount of restitution requested, which was to be a joint and several obligation with H.H.

D.S. argues that juvenile court Disposition orders may be modified only under JuCR 7.14, *fn5 in accordance with RCW 13.40.190 and RCW 13.40.200. *fn6 He claims that none of the grounds under those rules applies in this case. Further, he argues that none of the grounds for relief from judgment or order under CrR 7.8 applies in this case.

Criminal Rule 7.8 allows relief from judgments or orders: *fn7

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. Such mistakes may be so corrected before review is accepted by an appellate court, and thereafter may be corrected pursuant to RAP 7.2(e).

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 7.6;

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other ...

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