State Of Washington, Respondent V Janice Mae Lester, Appellant (Majority)
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FILED COURT OF APPEfr LS Dh' ISION, II 2 0 i 4 t1iAR 25 A114 8: S4 ST n' IN THE COURT OF APPEALS OF THE STATE OF WASHIN DIVISION II No. 45057 -7 -II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION JANICE MAE LESTER, Janice Mae Lester appeals from the sentence imposed following her pleas of LEE, J. guilty to two counts of forgery. She argues that the trial court ( 1) erred in imposing restitution for an uncharged crime and (2) erred in imposing legal financial obligations. The State concedes the first error and we remand Lester Travelodge pleaded and one court imposed the filing fee, $ 600 for resentencing. guilty to two for passing two counts of forgery, counterfeit $20 following legal financial court- appointed I one bills for passing at a obligations: $ attorney fee, $ 100 DNA fruit 500 a counterfeit $ 20 stand. At sentencing, the trial victim assessment, $ collection fee bill at a and $ 200 criminal 1, 000 jail recovery cost. The court made the following finding:, The court has considered the total amount owing, the defendant' s present and future ability to pay legal financial obligations, including the defendant' s financial resources and the likelihood that the defendant' s status will change. The court makes the following specific findings:... . Clerk' s Papers ( CP) at 39. 1 A commissioner of this court initially considered Lester' s appeal as a motion on the merits under RAP 18. 14 and then transferred it to a panel of judges. No. 45057 -7 -II The judgment and sentence form did not contain a box, as most such forms do, stating that it found " that the defendant has' the ability or likely future ability to pay the legal financial imposed herein. obligations The court did not check either of the boxes RCW 9. 94A.753." stating that it found: The following extraordinary circumstances exist that make restitution inappropriate ( RCW 9. 94A.753): The .defendant has the present means to pay costs of incarceration. RCW 9. 94A.760. CPat39. The trial Austin Howe112 court then follows: $ 40 to ordered restitution as Big Tom' s Drive In, $ 40 to and $ 20 to Travelodge. First, Lester argues that because she had not been charged with a crime against Big Tom' s Drive - and because she had not agreed to pay restitution for uncharged offenses, the In trial court erred Wn. App. in ordering her to pay restitution to Big Tom' s Drive In. State v. Osborne, 140 38, 42, 163 P. 3d 799 ( 2007). The State concedes that Lester is correct. We accept the State' s concession. Second, Lester argues that the court erred in imposing the legal financial obligations because no evidence was presented that she has the ability or likely future ability to pay them. State v. Bertrand, 165 Wn. 2012). resources Before making of obligations. App. such the defendant 393, 404, 267 P, 3d 511 ( 2011), review denied, 175 Wn.2d 1014 a and finding, the the trial nature of court the must burden" take " into account the financial imposed by the legal financial Bertrand, 165 Wn. App at 404 ( quoting State v. Baldwin, 63 Wn. App. 303, 312, 2 Howell is apparently the owner of the fruit stand. 2 No. 45057 -7 -II 818 P. 2d 1116, 837 P. 2d 646 ( 1991)). Because we remand for resentencing, Lester can raise this issue in the trial court. We remand to the trial court to strike the restitution order as to Big Tom' s Drive - and In to address Lester' s ability to pay the legal financial obligations. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Lee, J. 3
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