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State Of Washington, Respondent V. Robert Foster, Appellant

Case Date: 05/01/2012

 
DO NOT CITE. SEE GR 14.1(a).


Court of Appeals Division II
State of Washington

Opinion Information Sheet

Docket Number: 42358-8
Title of Case: State Of Washington, Respondent V. Robert Foster, Appellant
File Date: 05/01/2012

SOURCE OF APPEAL
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Appeal from Pierce County Superior Court
Docket No: 09-1-02821-6
Judgment or order under review
Date filed: 06/17/2011
Judge signing: Honorable Brian Maynard Tollefson

JUDGES
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Authored byChristine Quinn-Brintnall
Concurring:David H. Armstrong
Lisa Worswick

COUNSEL OF RECORD
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Counsel for Appellant(s)
 Catherine E. Glinski  
 Attorney at Law
 Po Box 761
 Manchester, WA, 98353-0761

Counsel for Respondent(s)
 Melody M Crick  
 Pierce County Prosecuting Attorney
 930 Tacoma Ave S Rm 946
 Tacoma, WA, 98402-2171
			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  42358-8-II

                             Respondent,

       v.

ROBERT EMMETT FOSTER,                                      UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --     On  March 10, 2011, the State charged Robert Foster with 

unlawful possession of a stolen vehicle (count I), and bail jumping (counts III, IV, V).   RCW 

9A.56.068; RCW 9A.76.170.  A jury found Foster not guilty of possession of a stolen vehicle 

(count I), but guilty of three counts of bail jumping (counts III, IV, and V).1 The judgment and 

sentence correctly indicate that the jury acquitted Foster of unlawful possession of a stolen 

vehicle, but the trial court mistakenly imposed a sentence of 90 days on count I, rather than on 

counts III, IV, and V.  On appeal, Foster contends -- and the State concedes -- that the sentence 

was incorrectly imposed on count I.  We remand to the trial court for correction of the clerical 

error.

1 The State also charged Foster with third degree driving with a suspended license (count II), 
RCW 46.20.342(1)(c), but dismissed this charge prior to trial.   

No. 42358-8-II

       An error is clerical if the amended judgment corrects the language "to reflect the court's 

intention." State v. Snapp, 119 Wn. App. 614, 627, 82 P.3d 252, review denied, 152 Wn.2d 1028

(2004).  To determine whether an error is clerical or judicial, we look to "'whether the judgment, 

as amended, embodies the trial court's intention, as expressed in the record at trial.'" Snapp, 119 

Wn. App. at 627 (quoting Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 

326, 917 P.2d 100 (1996)).  A court may correct a clerical mistake or scrivener's error at any 

time:

       "Clerical mistakes in judgments, orders or other parts of the record and errors 
       therein arising from oversight or omission may be corrected by the court at any 
       time of its own initiative or on the motion of any party and after such notice, if 
       any, as the court orders.  Such mistakes may be so corrected before review is 
       accepted by an appellate court, and thereafter may be corrected pursuant to RAP 
       7.2(e)."

State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121 (2011) (quoting CrR 7.8(a)).

       Here, the judgment and sentence indicate a sentence imposed as to count I.  Since the jury 

acquitted Foster of count I, this was error.  The trial court clearly intended to sentence Foster to 

90 days in jail because the jury found him guilty of bail jumping as per counts III, IV, and V:  the 

trial court read the verdict forms aloud at trial and polled the jury as to each verdict.  And, at 

sentencing, the trial court stated, "I'm going to sentence you to the first time offender.  However, 

owing to your three felony convictions, I'm sentencing you to 90 days in jail."     6 Report of 

Proceedings at 284-85.  Clearly, the trial court intended the 90-day sentence to apply to the three 

bail jumping convictions, not the unlawful possession of a stolen vehicle charge for which the jury 

acquitted Foster.  This is a clerical error.  Allowing the trial court to make a ministerial correction 

will not affect the substance of Foster's judgment or sentence.  Accordingly, we remand to the 

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No. 42358-8-II

trial court to amend the judgment and sentence so that it reflects the sentence imposed on counts 

III, IV, and V. 

       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.

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, J.

WORSWICK, A.C.J.

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