Opinion
No. 23975-6-III.
June 27, 2006.
Appeal from a judgment of the Superior Court for Columbia County, No. 90-1-00011-2, William D. Acey, J., entered March 15, 2005.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Colleen G Fenn, Attorney at Law, 116 N 3rd St, Dayton, WA 99328-1149.
Affirmed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Kato, J.
William Smith appeals the denial of his motion to terminate his legal financial obligations. He contends the court erred in denying the motion, because his initial restitution order was untimely. We affirm.
Mr. Smith also filed a motion on the merits that was referred to us. RAP 17.2(b). We deny the motion.
Mr. Smith pleaded guilty to second degree burglary and was sentenced on September 18, 1990. In his statement on plea of guilty, Mr. Smith stated: `I have been informed and fully understand that the Prosecuting Attorney will make the following recommendations to the court: Count 1 will be dismissed and I agree to pay restitution on all counts, whether dismissed or not.' Clerk's Papers (CP) at 3. Mr. Smith's judgment and sentence indicated that restitution was to be determined at a later date.
On April 9, 1991, the State filed a motion and affidavit for an order of restitution. No restitution, however, was sought and no restitution order was entered. On March 24, 1993, the State moved for a nunc pro tunc order of restitution. The State argued that the delay in the entry of the restitution order was due to Mr. Smith's failure to maintain contact with his attorney. The State also provided the court with a letter from Mr. Smith's attorney. The letter stated:
Enclosed is the original Order of Restitution which was inadvertently filed away in my file awaiting contact with my client to approve. I still have had no contact with Smith and the contact numbers that I had for him are no longer good numbers. Thus, with ample apology, I return this Order to you to note for presentment.
CP at 38. On April 16, 1993, the nunc pro tunc restitution order was entered. The order required Mr. Smith to pay $762.39.
On July 17, 2000, the State moved for an order granting an additional 10 years to execute the judgment. On August 10, the court granted the order. The court found Mr. Smith's total legal financial obligation, including costs, fines, assessments, restitution, and interest was $1,848.93, and an additional 10 years was necessary for collection of the judgment.
On February 17, 2005, Mr. Smith moved to terminate his legal financial obligations under RCW 9.94A. 7605(1)(a). Mr. Smith argued that (1) he did not have the present or likely future ability to pay; (2) the imposition of the legal financial obligations imposed an undue burden on him and his family; (3) the amount of restitution was excessive; (4) there were no factual findings in the record to reflect that he had the ability to pay the legal financial obligations; (5) he did not have a college education or a high school diploma; (6) he did not have any job skills; (7) he had two children to support and child support payments; (8) he was a career criminal; and (9) he was only employed in prison. The court denied Mr. Smith's motion. The court stated it would reconsider its decision if Mr. Smith filed another motion once he was released from prison and his circumstances were other than that he was incarcerated. Mr. Smith appeals. Mr. Smith contends the court erred when it denied his motion to terminate his legal financial obligations. He argues that because the initial 1993 restitution order was untimely, he has no obligation to pay restitution, and the court should have terminated his legal financial obligations with respect to any restitution payment.
The court's authority to order restitution is statutory. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). The trial court's interpretation of restitution statutes is reviewed de novo. State v. Edelman, 97 Wn. App. 161, 165, 984 P.2d 421 (1999). When the statute authorizes restitution, "imposition of restitution is generally within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999) (emphasis omitted) (quoting Davison, 116 Wn.2d at 919). "An abuse of discretion occurs only when the decision or order of the court `is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Id. at 679-80 (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)) (internal quotation marks omitted).
Former RCW 9.94A.142(1) (1989), in effect when Mr. Smith was sentenced in 1990, provided in pertinent part that `[w]hen restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within sixty days.' The statute was later amended to extend this period to 180 days. Laws of 1995, ch. 231, § 2.
At the threshold, the State argues Mr. Smith appealed only from the order denying his motion to terminate legal obligations and that he can only raise issues relating to that motion. This procedural consideration disposes of Mr. Smith's appeal.
According to RAP 2.4(c):
[T]he appellate court will review a final judgment not designated in the notice only if the notice designates an order deciding a timely posttrial motion based on (1) CR 50(b) (judgment as a matter of law), (2) CR 52(b) (amendment of findings), (3) CR 59 (reconsideration, new trial, and amendment of judgments), (4) CrR 7.4 (arrest of judgment), or (5) CrR 7.6 (new trial).
The order appealed from here was the denial of Mr. Smith's motion to terminate his legal financial obligations. This court's scope of review is thus limited to the issues raised by that motion. See, e.g., State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). `On review . . . only `the propriety of the denial not the impropriety of the underlying judgment' is before the reviewing court.' Id. (emphasis omitted) (quoting Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980)). Thus, an unappealed final judgment cannot be converted into an appeal of that judgment by moving to terminate legal financial obligations and appealing the denial of the motion. See Gaut, 111 Wn. App. at 881.
Here, on direct appeal, the only order before us is the trial court's denial of Mr. Smith's motion to terminate his legal financial obligations. Mr. Smith, however, makes no attempt to show that the court abused its discretion by denying the motion. Instead, Mr. Smith's assignments of error on appeal allege that the 1993 restitution order was untimely. This effectively refers to the underlying judgment and sentence. Edelman, 97 Wn. App. at 166. New assignments of error to the circumstances surrounding the judgment and sentence are not reviewable on appeal from an order denying Mr. Smith's motion to terminate his legal financial obligations. See Gaut, 111 Wn. App. at 882.
Mr. Smith accepted restitution as part of his plea agreement. He made at least one payment toward his legal financial obligations. He never challenged the timeliness of the restitution order until this appeal, more than 12 years later. Mr. Smith had ample opportunity to directly appeal the initial restitution order. He should have raised this issue at that time. Mr. Smith cannot now request an opportunity to do so as a part of his appeal of the court's denial of his motion to terminate his legal financial obligations.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and KATO, J., concur.