State v. MollichiState v. Mollichi
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
ISSUES
1. Are the time frame and procedure for a disposition hearing under
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 (
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
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/n 30 days.” Clerk‘s Papers at 10.1
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 in 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
ANALYSIS
A. The Disposition Hearing of
(3) 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:
...
(f) Determine the amount of restitution owing to the victim, if any; ...
(Emphasis added.) The initial question in this case is whether the court has discretion to determine and enter an order of restitution at any time other than the time of the disposition hearing.
In State v. Krall, 125 Wash.2d 146, 881 P.2d 1040 (1994), we interpreted language in the SRA regarding adult restitution hearings. Former
The Court of Appeals here chose not to apply Krall‘s strict interpretation of the word “shall.” Rather, the Court of Appeals observed the Juvenile Justice Act differs from the SRA insofar as the Juvenile Justice Act states as one of the “equally important purposes” of the Act “restitution to the victims of crime,”
The Court of Appeals’ reasoning is not persuasive as to the meaning of “shall.” First, the SRA itself makes restitution a key component for adult sentencing. See
Second, in State v. Moen, 129 Wash.2d 535, 919 P.2d 69 (1996), the Court said, “Our unanimous holding in Krall recognizes that the statutory time mandate prevails over victims’ rights to restitution.” Id. at 542, 919 P.2d 69. Moreover, the statutory requirement to determine the restitution amount only at the disposition hearing might be indicative of legislative intent to adopt a more strictly determinative approach to disposition and restitution in the case of juveniles. “Where statutory language is plain and unambiguous, a statute‘s meaning must be derived from the wording of the statute itself.” Human Rights Comm‘n ex rel. Spangenberg v. Cheney Sch. Dist No. 30, 97 Wash.2d 118, 121, 641 P.2d 163 (1982). See also Erection Co. v. Department of Labor and Indus., 121 Wash.2d 513, 852 P.2d 288 (1993); Marquis v. City of Spokane, 130 Wash.2d 97, 107, 922 P.2d 43 (1996) (under our rules of statutory construction, a statute clear on its face is not subject to judicial interpretation). We have no license to rewrite explicit and unequivocal statutes.
Thus, under the mandatory language of
B. Continuances of the Disposition Hearing by Court Order or Waiver
While the language of
1. Court Order
Both
The disposition hearing shall be held within fourteen days after the adjudicatory hearing or plea of guilty unless good cause is shown for further delay, or within twenty-one days if the juvenile is not held in a detention facility, unless good cause is shown for further delay.
Similarly,
A disposition hearing shall be held if the juvenile has pleaded guilty or has been found guilty by the court. The hearing may be held immediately following the juvenile‘s plea of guilty or immediately following the adjudicatory hearing if found guilty by the court.
By their terms,
In the present case, the State did not file a formal motion to continue the disposition hearing pursuant to
2. Waiver by the Juvenile
Mollichi contends that the trial court here “lacked jurisdiction to hold a separate restitution hearing...” Pet. for Review at 3. Moreover, Mollichi argues “no party can confer jurisdiction which exceeds that statutorily granted to the trial court.” Pet. for Review at 6 n. 4. We disposed of this jurisdictional argument in Moen in the context of the SRA: “[U]ntimely imposition of restitution as a condition of a sentence is not a jurisdictional defect.” Moen, 129 Wash.2d at 545, 919 P.2d 69. Similarly, the requirement that restitution be set in a disposition hearing is not jurisdictional and may be waived by the juvenile.4 We must now turn to the circumstances which evidence a waiver.
In In the Matter of the Personal Restraint Petition of Fleming, 129 Wash.2d 529, 919 P.2d 66 (1996), two prisoners filed personal restraint petitions complaining the court entered their restitution orders beyond the 60-day statutory time limit. We dismissed both petitions because the petitioners had not demonstrated a “fundamental defect resulting in a complete miscarriage of justice” requiring dismissal of the restitution orders. Id. at 533, 919 P.2d 66. Additionally, we indicated a defendant may not collaterally attack a restitution order entered by agreement where the defendant waived the 60-day limit for restitution hearings:
While a defendant cannot agree to have the court act outside its authority or jurisdiction, the Petitioners in this case can hardly argue they have been subject to a complete miscarriage of justice when the sentencing court had the authority to order restitution at the time of sentencing but did not on the basis of the Petitioners’ request to defer the restitution hearings.
Petitioner Smith‘s restitution hearing was continued beyond the 60-day limit at his own request because he wanted to obtain additional evidence to contest the State‘s assertion of the restitution amount. Fleming was sentenced and ordered to pay an amount of restitution to be determined at a later time. He then disputed the amount requested so that a hearing was necessary to set the amount of restitution. The restitution hearing was not scheduled until more than a year after sentencing. Although we said: “we note that Fleming and Smith both agreed to the continuation of their restitution hearings,” Fleming, 129 Wash.2d at 534, 919 P.2d 66, there is no indication in the record that Fleming himself requested the 60-day limit be enlarged. Fleming did request a continuance of the restitution hearing, but not until one year after the statutory limit had been exceeded.
Fleming appears to apply only to PRP cases, where the standard of review—fundamental defect resulting in a complete miscarriage of justice—is probably exacting enough to overcome most challenges to lateness in determining the restitution amount. Thus, Fleming left open the more general question of whether a court has authority to enter a restitution order beyond the statutory limit even if the defendant agrees to a waiver.
In State v. Hunsicker, 129 Washed 554, 919 P.2d 79 (1996), Hunsicker entered into a plea agreement in which he agreed to pay restitution of $1,800 for eight forged checks. Id. at 555, 919 P.2d 79. The restitution hearing occurred well beyond the 60-day limit. Hunsicker challenged the restitution order. We affirmed the restitution order on the ground Hunsicker had entered into an agreement to pay a specific amount of restitution as part of his plea agreement. Plea agreements are contracts. Id. at 559, 919 P.2d 79. Because Hunsicker had agreed to pay a specified amount at the time of his sentencing, we held that Hunsicker‘s restitution was determined within the statutory time requirement. Id. at 560, 919 P.2d 79. Thus, the statutory imperative to determine the amount of restitution within 60 days was honored. Entry of the order of restitution was a ministerial formality under such circumstances.
Finally, in State v. Moen, 129 Wash.2d 535, 919 P.2d 69 (1996), Moen expressed his desire in open court to pay restitution to his victim. An order of restitution was entered at the time of his sentencing, but the order required the amount to be set at a later date. A restitution order was subsequently entered three weeks beyond the 60-day limit. Moen objected to the entry of that order on timeliness grounds. We agreed with Moen, and reversed the restitution order in a 5-4 decision distinguishing Moen from Hunsicker by noting, “While the defendant expressed a desire to pay restitution, it was not part of any plea agreement.” Id. at 540, 919 P.2d 69. In fact, there had been no quid pro quo because Moen had been convicted of an offense resulting in injury to another, and under
Notwithstanding the mandatory language of
A juvenile may agree to continue the disposition hearing5 or may even agree to set restitution at a different time. Moreover, as we said in Hunsicker, where the offender has contractually undertaken to pay restitution pursuant to a plea agreement, the offender is bound by the terms of the agreement. We now turn to the question of whether Mollichi‘s actions in this case constituted a waiver of
C. Mollichi‘s Actions in This Case
In the present case, Mollichi‘s attorney agreed to have restitution determined after the disposition hearing upon the request of the State for more time to obtain the cost of roof repair. Mollichi voluntarily accommodated the State‘s request, but he was not obliged to do so. He could have insisted on having the restitution set at the disposition hearing pursuant to
But Mollichi agreed to continue the time for setting restitution only for a limited period. The order required restitution to be set within 30 days. It was not. We presume the written order of the juvenile court, made contemporaneously with the discussion between counsel for Mollichi and counsel for the State, embodied and memorialized Mollichi‘s agreement for a continuance. At any rate, the State never moved to revise it to reflect what it now argues was merely Mollichi‘s agreement to have the restitution hearing noted, but not necessarily heard, within 30 days.
Judge Schapira interpreted the Order entered on September 23, 1993 to mean that the State only had to note the hearing within 30 days. This is not what the order said. Under
Thus, because restitution was not ordered at the disposition hearing, or within the
CONCLUSION
Mollichi was statutorily entitled to have the amount of his restitution entered at his disposition hearing. The restitution order was not entered here in accordance with
DURHAM, C.J., and DOLLIVER, SMITH, GUY, JOHNSON, MADSEN, ALEXANDER, and SANDERS, JJ., concur.