Opinion
No. 50324-3-I
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 85-1-04141-7 Judgment or order under review Date filed: 03/26/2002
Counsel for Appellant(s), Washington Appellate Project (Appearing Pro Se), Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza (Appearing Pro Se), WA Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Wilmer Ray Russell (Appearing Pro Se), 7101 38th Ave South, Apt. 102, Seattle, WA 98118.
Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Wilmer Russell was convicted of first degree murder in 1986. While the judgment and sentence indicated that restitution was to be determined at a later date, no restitution order was ever entered. In 2002, Russell moved to vacate the non-existent restitution order. The trial court properly denied Russell's motion for relief from restitution, because no order of restitution had been entered. We therefore affirm.
FACTS
Russell pled guilty to first degree murder on King County cause number 85-1-04141-7 SEA, and was sentenced on June 10, 1986. His sentence included a prison term of 295 months, which was to run concurrently with an earlier sentence following a conviction for first degree theft on King County cause number 84-1-00539-1 SEA. The sentencing court also ordered that Russell pay public defender fees and court costs. Russell's judgment and sentence indicated that restitution was to be set at a later date. However, no restitution was sought and no restitution order was entered.
In February 2002, shortly before he was scheduled to be released from prison, Russell filed a motion under cause number 85-1-04141-7 SEA entitled 'Motion for Relief from Restitution Order of Sentence/Affidavit CrR 7.8(b)(4).' In the motion, Russell requested that the court 'void' the order of restitution imposed in his 1986 judgment and sentence. In support of his motion, Russell cited to In re Personal Restraint of Sappenfield, 138 Wn.2d 588, 980 P.2d 1271 (1999), wherein the Supreme Court held that jurisdiction over a defendant for purposes of restitution expires after 10 years, and the fact that the defendant absconds does not toll the statute.
On March 26, 2002, Russell signed an affidavit in support of his motion, which was filed on April 2, 2002. The caption to the affidavit listed not only cause number 85-1-04141-7 SEA, but also cause number 84-1-00539-1 SEA. In the affidavit, Russell alleged that he was ordered to pay restitution in the amount of $778 in the two cause numbers. He referred to the exhibits filed in his initial motion, which included the judgment and sentence on cause number 85-1-04141-7 SEA, as well as what appears to be print outs from the department of corrections on both cause numbers. As to cause number 85-1-04141-7 SEA, the print out indicates that Russell owed $390 in attorney fees and a $70 victim penalty assessment. As to cause number 84-1-00539-1 SEA, the print out indicates that Russell owed $318 in unspecified fines.
In an order dated March 26, 2002, the trial court denied Russell's motion. The order referenced only King County cause number 85-1-04141-7 SEA. No motion was filed in the trial court on cause number 84-1-00539-1 SEA, and no order was ever entered.
Russell filed a notice of appeal listing both cause numbers in the caption. The notice was dated on April 1, 2002, and filed in King County Superior Court on April 3, 2002, five days before the order denying his motion was actually filed in the superior court. Russell attached a copy of the court's order denying his motion on cause number 85-1-04141-7 SEA to the notice of appeal.
In this court, separate cause numbers were assigned to each of Russell's King County cases: COA 50324-3-I for King County cause number 85-1-04141-7 SEA, and COA 50325-3-I for King County cause number 84-1-00539-2 SEA. The two cases were consolidated by order of a commissioner of this court.
DISCUSSION
Russell never filed a motion in the trial court on King County cause number 84-1-00539-2 SEA. There was no order entered from which Russell can appeal. See RAP 2.2(a). His appeal on COA 50325-3 is therefore dismissed. With regards to COA 50324-3, Russell claims that the trial court erred in denying his motion. He argues that the court's jurisdiction over him expired in 1996, 10 years after he was sentenced. He points out that under the law in effect at the time he was sentenced, monetary payments were to be made within 10 years of sentencing, and that this information was contained in both his statement on plea of guilty, and his judgment and sentence. Citing to Immigration Naturalization Serv. v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), he contends that subsequent changes in the law should not be retroactively applied to him.
This argument misses the point. Russell did not seek relief from any and all legal financial obligations. Rather, he moved to vacate an order of restitution. But he was never ordered to pay restitution. The trial court did not err in denying Russell's motion for relief from a non-existent order of restitution. We therefore affirm.
Affirmed.
GROSSE and BAKER, JJ., concur.