No. 64617-6-I.The Court of Appeals of Washington, Division One.
Filed: April 18, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-01298-7, Monica J. Benton, J., entered November 19, 2009.
Reversed by unpublished opinion per Becker, J., concurred in by Leach, A.C.J., and Schindler, J.
BECKER, J.
Joshua McIntire challenges a restitution order issued after the statutory 180 day deadline. The State argues the order is valid because it merely modifies an earlier restitution order that was timely entered. We disagree. The order was not a modification but rather a determination for the first time of the amount McIntire owed to a victim whose damages could have readily been ascertained before the 180 day deadline.
McIntire took a 1996 Honda Accord without permission and got into an accident with a Toyota Corolla. McIntire was convicted of taking a motor vehicle without permission on January 13, 2008. The trial court sentenced McIntire to 16 months of incarceration on August 15, 2008. On October 10, 2008, the court timely ordered McIntire to make restitution of $6,725.66 to Allstate Insurance Company for the damaged Honda. The court’s order also indicated, “Additional restitution may be requested and ordered in the future, beyond the 180 days, if directly related to this cause number.”
Four days later, on October 14, United Services Automobile Association (USAA) filed a letter with the State seeking restitution for the damaged Toyota. The State did not note a hearing on this request until more than one year later. At that hearing, on November 19, 2009, the trial court entered an order imposing restitution of $14,668.37 to USAA for the Toyota. McIntire argues that the order of restitution for the Toyota must be reversed as untimely and therefore beyond the court’s authority to impose.
A court’s authority to order restitution is derived solely from statute. State v. Gonzalez, 168 Wn.2d 256, 261, 226 P.3d 131, cert. denied, 131 S. Ct. 318 (2010). Whether a trial court exceeded its statutory authority is an issue we review de novo. State v. Burns, 159 Wn. App. 74, 78, 244 P.3d 988 (2010). We also review questions of statutory interpretation de novo. Gonzalez, 168 Wn.2d at 263.
“When restitution is ordered, the court shall determine the amount of restitution due at the sentencing hearing or within one hundred eighty days.” RCW 9.94A.753(1). The statute provides for modification of a restitution order as follows: “The portion of the sentence concerning restitution may be modified as to amount, terms, and conditions during any period of time the offender remains under the court’s jurisdiction, regardless of the expiration of the offender’s term of community supervision and regardless of the statutory maximum sentence for the crime.” RCW 9.94A.753(4).
The State contends the court had authority to modify its initial restitution order because McIntire was still under the court’s jurisdiction and an initial restitution order was issued within the 180 day period. The State relies primarily on Gonzalez. In Gonzalez, the defendant committed an assault that caused extensive injuries to the victim’s face. At the sentencing hearing, the trial court ordered restitution for the victim’s medical bills. The victim continued to accrue medical bills for additional treatment of the injuries. Nearly three years later, the court ordered the defendant to make restitution for the additional bills. Our Supreme Court affirmed and held that where RCW 9.94A.753(4) permits the restitution order to be modified as to “amount” so long as the offender remains under the court’s jurisdiction, the word “amount” means total amount, not just the amount of the monthly payment. Gonzalez, 168 Wn.2d at 264.
We recently distinguished Gonzalez in a case similar to McIntire’s, State v. Burns, 159 Wn. App. 74, 244 P.3d 988, 989
(2011). Defendant Burns agreed to pay restitution for crimes to which he had pled guilty. At the sentencing hearing, the court determined the amount of restitution due as $8,923.25. Burns also agreed to pay restitution for uncharged crimes, but disputed the amount. The State promised to schedule a hearing to address additional restitution within the 180 day statutory period but did not do so until after the period expired. Nonetheless, the court ordered additional restitution. We reversed and rejected the State’s argument that the second restitution order was merely a modification of the first order. We recognized that there is no restitution to modify if it is not “determined” in the first place under RCW 9.94A.753(1). Burns, 159 Wn. App. at 79. Because the court had never “determined” restitution for the uncharged crimes, the additional restitution order violated RCW 9.94A.753(1):
It was not until the May and June 2009 hearings that the State for the first time attempted to prove by a preponderance of the evidence an amount of restitution for the uncharged crimes. Contrary to the State’s claims, the purpose of those hearings was not to modify the original restitution order; rather, it was to prove for the first time the amount of restitution Burns owed for his uncharged crimes. In other words, restitution for the uncharged crimes was not “determined” until June 4, 2009, more than 180 days after sentencing. This violates RCW 9.94A.753(1), and the trial court’s June 4, 2009 order setting additional restitution was error.
Burns, 159 Wn. App. at 79-80.
The State argued in Burns, as it does here, that Gonzalez required a different result. We concluded the case was “wholly unlike” Gonzalez. Burns, 159 Wn. App. at 80. In Gonzalez, the victim required ongoing medical attention, making it impossible to “determine” the total amount of restitution due at the initial hearing. But in Burns, the State failed to get any amount of restitution determined for the uncharged crimes until after the 180 day deadline had passed.
This case is similar to Burns in all material respects. The restitution ordered at the second hearing, well after the 180 day deadline, was not merely a modification of an amount that the court had previously determined. Instead, it was a separate restitution order to a different victim for a different piece of damaged property. Gonzalez is not to the contrary because here the expenses for the damaged Toyota did exist, were ascertainable, and could have been determined within the 180 day period.
Reversed.
WE CONCUR: