STATE v. TISCARENO, 20745-5-III (Wash.App. 8-10-2004)

110 P.3d 265

No. 20745-5-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: August 10, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Franklin County. Docket No. 95-1-50378-0. Judgment or order under review. Date filed: 06/04/1996. Judge signing: Hon. Duane Eugene Taber.

Counsel for Appellant(s), Sheryl Gordon McCloud, Attorney at Law, 1301 5th Ave Ste 3401, Seattle, WA 98101-2605.

Counsel for Respondent(s), Steven Mark Lowe, Attorney at Law, 1016 N 4th Ave, Pasco, WA 99301-3706.

Paige L. Sully, Attorney at Law, 1016 N 4th Ave, Pasco, WA 99301-3706.

BROWN, J.

Marsial Tiscorino was convicted of second degree felony murder, the predicate felony being second degree assault. Our Supreme Court has decided the legislature did not intend second degree assault to be a predicate felony for second degree felony murder. State v. Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). In the fall 2003 term, the court heard additional argument bearing on this issue. See In re Pers. Restraint of Hinton, Supreme Court No. 73504-2, and State v. Hanson, Supreme Court No. 74079-8. Therefore, we stayed Mr. Tiscorino’s appeal. We lifted our stay in April 2004 to permit decision of the other issues in Mr. Tiscorino’s appeal to avoid any prejudicial delay of his release.

Meanwhile, the Supreme Court issued its decision in Hanson and mandated it. State v. Hanson, ___ Wn.2d ___, 91 P.3d 888 (2004). The court held that Andress applies to persons such as Mr. Tiscorino whose appeals were pending at the time Andress was decided. Thus, Mr. Tiscorino’s conviction for second degree murder must be reversed because his predicate offense was improperly based upon second degree assault. Therefore, we vacate Mr. Tiscorino’s conviction and remand for further proceedings consistent with Andress and Hanson.

A majority of the 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 2.06.040.

SCHULTHEIS, J. and KURTZ, J., concur.