State of Washington v. Gerald Keith Moccardine (Majority)
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FILED NOVEMBER 12, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. GERALD KEITH MOCCARDINE, Appellant. ) ) ) ) ) ) ) ) ) No. 37186-7-III UNPUBLISHED OPINION KORSMO, A.C.J. — Gerald Moccardine appeals from two convictions for violating a protection order. The State concedes that an essential element was missing from each charge. We agree and reverse the convictions. Little needs to be said about the facts or procedural history. The charging document alleged, in each instance, that Mr. Moccardine “violated the provision(s) of a valid protection order.” Clerk’s Papers at 1. The statute, however, requires proof that there is a valid protection order and that the defendant “knows of the order” and violates it. RCW 26.50.110(1)(a). We agree with the parties that the information filed against Mr. Moccardine lacked an allegation that he knew about the valid protection order. When a charging document lacks an essential element, the remedy is to reverse the conviction(s) without prejudice to No. 37186-7-III State v. Moccardine recharge the offense(s). State v. Murry, 13 Wn. App. 2d 542, 551-553, 465 P.3d 330 (2020). The convictions are reversed without prejudice. 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. _________________________________ Korsmo, A.C.J. WE CONCUR: _________________________________ Fearing, J. _________________________________ Lawrence-Berrey, J. 2
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