### FILED JAN29,2015 In theOfficeoftheClerkofCourt WA StateCourtofAppeals, Division III



### IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OFWASHINGTON, ) No. 32077-4-111 ) Respondent, ) ) 

# I I**.~** v. ) ) 

## I i ROBERTALAN GABRIEL, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, 

### J.

- Robert Gabriel appeals the superiorcourt's decision under CrR 7.8 tovacate its erroneous discharge orderentered after Mr. Gabriel's failure to pay restitution for his malicious mischief. Mr. Gabriel contends the court erred in granting the State's motion to vacate because itwas untimely under RCW 10.73.090. We disagree and affirm. FACTS In September2004, the State charged Mr. Gabriel with first degree malicious mischieffor "knowingly and maliciously caus[ing] physical damage in excess ofone thousandfive hundred dollars ($1,500.00) to an excavatorthe property ofanother, R2 Construction." Clerk's Papers (CP) at 1. In February 2005, Mr. Gabriel pleaded guilty tofirst degree malicious mischief. The plea statement partly states, "The prosecuting attorneywill makethe following recommendation to thejudge: 3 months concurrentto

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# i**.~** :\ No. 32077-4-111 

# I State v. Gabriel 

# I other cases, dismiss malicious mischief2nd degree, pay restitution on dismissed case." 

# I CP at 5. The dismissed case was apparently a separate malicious mischiefcharge
i involving damageto afriend's vehicle. At sentencing, the court crossed outthe amount of restitution to be paid to R2 Construction and wrote "to be determined." CP at 12. After a few continuances, a 

# I restitution hearing was held on July 27,2005 and the court ordered Mr. Gabriel to pay 

# I $5,637.51

. The restitution ordered was never entered into the State's database that 

# I tracks legal financial obligations. 

# I On May 3, 2012, the trial court entered a discharge orderwith a financial history 

# i attached incorrectly showing all legal financial obligations had been paid. Mr. Gabriel 

# I received a final notice (mailed on April 1, 2013) from the superior court requesting paymentof$5,637.51

. In response, on May 1, 2013, Mr. Gabriel filed a motion to strike restitution alleging the court's lack ofjurisdiction to order payment based on the May 2012 discharge. The State responded with an August 19, 2013 motion to vacate the discharge order. In its letter opinion, the trial courtfound the discharge orderwas "entered erroneously," as Mr. Gabriel had not paid the ordered restitution. CP at 34. The court noted Mr. Gabriel's payments wentto his fines, costs and assessments and notto restitution. The court concluded itwas appropriateto grantthe State's motion to vacate the discharge order "pursuantto CrR 7.8(a) and/or CrR 7.8(b)(4) or (5)." CP at 34. Mr. Gabriel appealed. The State limits its response to CrR 7.8(b)(4).



### 2No. 32077-4-111 State v. Gabriel
ANALYSIS The issue is whetherthe trial court erred by granting the State's CrR 7.8(b)(4) motion to vacate the discharge order. Mr. Gabriel contends the court should have denied the request as untimely under CrR 7.8 and RCW 10.73.090. We review a trial court's decision to vacate ajudgment under CrR 7.8 for an abuse ofdiscretion. State v. Ellis, 76Wn. App. 391, 394, 884 P.2d 1360 (1994). An abuse ofdiscretion occurs when the trial court's decision is manifestly unreasonable, or exercised on untenable grounds, orfor untenable reasons. State v. Aguirre, 73 Wn. App. 682, 686, 871 P.2d 616 (1994). Interpreting law and applying lawto facts are legal matters we review de novo. State v. Law, 110 Wn. App. 36, 39, 38 P.3d 374 (2002). CrR 7.8 provides relieffromjudgment in certain circumstances. Thetrial court here referenced "CrR 7.8(a), and/or CrR 7.8(b)(4) or (5)" as a basis for its decision. CP at 34. CrR 7.8(a) relates to clerical mistakes, CrR 7.8(b}(4} relates tovoid judgments, and CrR 7.8{b){5} is a catchall provision for any other reason justifying relief. The State relies solely upon CrR 7.8(b){4). Superior court criminal rule (CrR) 7.8(b)(4) provides for relieffrom void judgments. "A void judgment is one entered by a court 'which lacks the inherent power to make or enterthe particular order involved.'" State v. Reanier, 157 Wn. App. 194, 200-01,237 P.3d 299 (2010) (quoting State v. Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). In otherwords, the sentencing court must have inherent authority to enter an orderforthe orderto be valid. RCW 9.94A.637(1)(a) authorizes sentencing



### 3No. 32077-4-111 State v. Gabriel
courts to discharge an offender solely "[w]hen an offender has completed all requirements ofthe sentence, including any and all legal financial obligations," upon proper notification of requirements completion. The erroneous discharge order negatively affected the restitution order required by thejudgmentand sentence. Under these circumstances CrR 7.8(b)(4) was used appropriatelyto effectuate thejudgment and sentence. Because Mr. Gabriel had notyet satisfied his sentence, the court lacked authority to entera discharge order. As such, the orderwas "void" upon entry. Reanier, 157 Wn. App. at 200-01. Mr. Gabriel asks whetherthe motion to vacate on this basis was timely. Thetime limitfor a motion to vacate under CrR 7.8(b)(4) is a "reasonabletime," subject to RCW 10.73.090(1). RCW 10.73.090(1) provides, "No petition or motion for collateral attack on ajudgment and sentence in a criminal case may be filed morethan one year afterthejudgment becomes final ifthejudgmentand sentence is validon its face and
was rendered by a court ofcompetentjurisdiction." (Emphasis added.) Significantly, Mr. Gabriel does not contest his initial obligation to pay restitution in thejudgment and sentence and solely contests the later order withdrawing his discharge. The discharge orderwas entered on May 3, 2012. Because the restitution ordered was neverentered into the State database, which tracks legal financial obligations, the State did not become aware restitution was notsatisfied until May 1, 2013, when Mr. Gabriel filed his motion to strike restitution. The State responded with a motion to vacatethe discharge order on August 19, 2013, justover 3 and one half



### 4 I 

# I iNo. 32077-4-111 State v. Gabriel
months after learning ofthe oversight. This amount oftime is reasonable. See State v. Klump, 80 Wn. App. 391, 397, 909 P.2d 317 (1996) (requested relief under CrR 7.8(b) within 3 monthswas reasonable). Facial invalidity can exist ifa trial court lacked the statutory authority to impose a sentence or, in this case, to discharge a sentence. In

### re Pers. Restraint ofScott, 173 Wn.2d 911,916,271 P.3d 218 (2012). As discussed above, the trial court does not have statutory authority to discharge a sentence before "an offender has completed all requirements ofthe sentence, including any and all legal financial obligations." RCW 9.94A.637(1)(a). A discharge orderentered before the offender has completed all sentence requirements would renderthe orderfacially invalid under Scott. Moreover,
as we have reasoned above, Mr. Gabriel attacks solelythe later orderwithdrawing his discharge, not his responsibility to pay restitution in the first place. In sum, the State's motion tovacate underCrR 7.8(b)(4) was timely. The oneyeartime limit of RCW 10.73.090 does not apply. Accordingly, the trial court did not err by abusing its discretion in granting the State's motion to vacate the discharge order. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW



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### No. 32077-4-111 State v. Gabriel



### 2.06.040.

WE CONCUR: Brown, 

### J.

Siddoway, C.J. Lawrence-Berrey, 

### J.



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