State v Hennings :: 129 Wn2d 512
Category: Sentencing Guidelines
State v Hennings, 129 Wn2d 512
State v Moen, 129 Wn2d 535
State v Hunsicker, 129 Wn2d 554
Three cases relating to restitution--and relating to the aversion to write law to rectify adversity. All decided the same day, 18 July 1996.
The trial courts have been required by statute (prior to 1995) to issue the restitution order within 60 days of sentencing. In all three cases, the trial courts exceeded the 60-day window.
In 1984, however, the Court of Appeals held that the language of the restitution statute (RCW 9.94A.140) “created a permissive rather than mandatory time limit.” [at 515, referring to State v Hartwell, 38 WnApp 135]. Approximately one month after sentencing Hennings, the Supreme Court overruled Hartwell [State v Krall, 125 Wn2d 146]. The High Court now held that the 60-day time limit was mandatory.
The legislature set out to cure this problem by extending the time for determining the amount of restitution from 60 days to 180 days. Nonetheless, this amending took place after the Defendants filed their opening briefs in the Court of Appeals.
When the legislature amended this statute, they made it automatically retroactive. The Supreme Court ruled that this retroactive provision did not violate the defendants ex post facto, bill of attainder, double jeopardy, or due process rights. This was rightly ruled because the act was criminal when committed and the statute did not increase the quantum of punishment. Furthermore, the restitution required was not increased, etc . . . The decision was unanimous, all Justices pass.
In the next case, Moen, the results are a little different. The Court reversed the restitution order and the 1995 amendment to the statute is not being challenged.
Although the Judicial Forum believes strongly in restitution, we also hold firmly that the courts are bound by statute. The majority of the Court rightly reversed the restitution order because the trial court failed to set the amount of restitution within 60 days as required by statute [former RCW 9.94A.142].
Justice Talmadge, in his dissent, appeals to the victim’s right of restitution. (He also claims that the Defendant “clearly waived the statutory time limit.” How that is, is not clear; the Advance Sheets mention the Defendant waived his appearance at the restitution hearing.)
In this case, the law was penal toward the victim, due to the negligence of the trial judge. But it is not within the jurisdiction of the courts to change the law for the sake of fairness. That is the responsibility of the Legislature (which has corrected the problem). The victim, in any case, still retains the power to collect through civil litigation--which may be little consolation.
On the same day that the Supreme Court reversed a restitution order because it was filed a month late, they upheld another order that was filed almost a year-and-a-half late. The third case, although listed last in the Court reports, must have been tried second, because it was cited by the dissent in the case above. It is reasonable that this sequence caused Justice Talmadge to become confused and try to remodel the law.
In Hunsicker, the majority are working to remodel the former restitution statute retroactively to conform with the current statute.
In all three cases, the trial judges fail for neglecting their responsibility to file restitution orders within the 60-day window. The defense attorneys fail for wasting taxpayers’ money and court resources arguing whether convicted criminals owe restitution to their victims. You can bet it cost the taxpayers tens of thousands of dollars to save these criminals a few hundred.
Rating the Usual Suspects:
| pass | Alexander, Gerry | |
| pass | Dolliver, James | |
| pass | Durham, Barbara | |
| pass | Dwyer, Deborah | |
| pass | Fox, Robin | |
| pass | Guy, Richard | |
| pass | Johnson, Charles | |
| pass | Madsen, Barbara | |
| pass | Maleng, Norman | |
| pass | Rapada, Calvin | |
| pass | Sanders, Richard | |
| pass | Smith, Charles | |
| pass | Talmadge, Phil | |
| fail | Brown, Lindsay | |
| fail | David, Donnan | |
| fail | Krontz, Constance | |
| fail | Otero, Carmen |