STATE v. ROSENBAUM

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 22482-4-I.

Attorney(S)

Anna-Mari Sarkanen of Washington Appellate Defender Association, for appellant. David F. Thiele, Prosecuting Attorney, and Rex N. Munger, Deputy, for respondent.

Judges

PEKELIS, J.

See more information ...

Smart Summary

Factual and Procedural Background

On November 14, 1986, Tracy C. Rosenbaum was charged in juvenile court with one count of first degree theft and three counts of second degree vehicle prowling. Rosenbaum turned 18 on December 2, 1986. On December 22, 1986, counsel presented an Agreed Order Extending Jurisdiction (nunc pro tunc), and the court entered an order extending juvenile court jurisdiction for 12 months beginning December 1, 1986. Rosenbaum pleaded guilty on December 30, 1986, to one count of first degree theft and one count of second degree vehicle prowling. At disposition on January 16, 1987, he was sentenced to 17 to 20 weeks; the disposition order reserved restitution for a later hearing. On May 27, 1988, the superior court entered an order of restitution in the amount of $2,300.93. Rosenbaum filed a timely appeal from the restitution order on June 24, 1988, challenging the validity of the earlier nunc pro tunc extension of juvenile jurisdiction.

Legal Issues Presented

Whether an order not timely appealed that purports to extend juvenile court jurisdiction may be reviewed under RAP 2.4(b) when review of a later related order (the restitution order) is timely sought.
Whether juvenile court jurisdiction may be extended past a person's 18th birthday under RCW 13.40.300 unless the extension is in effect prior to the 18th birthday.
The proper standard of review for a nunc pro tunc order (whether the court manifestly abused its discretion).
The permissible purpose and limits of a nunc pro tunc order (whether it may record only prior acts actually performed and cannot remedy omissions).
Whether public policy favoring juvenile adjudication justifies validating a nunc pro tunc order entered after the offender's attainment of majority.
Whether a party who proposed an invalid nunc pro tunc order may later challenge its validity.

Arguments of the Parties

Appellant's Arguments

The juvenile court lost jurisdiction upon Rosenbaum's 18th birthday and could not regain it thereafter; the nunc pro tunc order purporting to extend jurisdiction was invalid.

Respondent's Arguments

The nunc pro tunc order validly conferred jurisdiction and thus supported the later restitution order.
Public policy favors treating Rosenbaum as a juvenile and the nunc pro tunc order served that public purpose.
Rosenbaum proposed and agreed to the nunc pro tunc order, and therefore should not be permitted to attack it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 134-35, 750 P.2d 1257, 756 P.2d 142 (1988)	Support for appellate review of un-designated prior orders under RAP 2.4(b)	The court relied on this authority to accept review of the nunc pro tunc order because it prejudicially affected the later restitution order.
In re Marriage of Maxfield, 47 Wn. App. 699, 702-03, 737 P.2d 671 (1987)	Support for scope of review under RAP 2.4(b)	Used alongside Adkins to justify reviewing the earlier nunc pro tunc order.
State v. Bushnell, 38 Wn. App. 809, 811, 690 P.2d 601 (1984)	Principle that juvenile court jurisdiction is strictly construed	Supported the court's position that jurisdictional limits must be strictly observed.
State v. Calderon, 102 Wn.2d 348, 353, 684 P.2d 1293 (1984)	Interpretation that juvenile jurisdiction ends at 18 unless timely extended	Reinforced the statute-based requirement (RCW 13.40.300) that extensions occur prior to the 18th birthday.
In re Estate of Carter, 14 Wn. App. 271, 276, 540 P.2d 474 (1975)	Standard of review for nunc pro tunc orders—discretionary and disturbed only for manifest abuse	Framed the appropriate deference and standard (manifest abuse) for reviewing the nunc pro tunc order.
State v. Mehlhorn, 195 Wn. 690, 692, 82 P.2d 158 (1938)	Purpose of nunc pro tunc: to record prior acts actually performed	Supported the court's conclusion that a nunc pro tunc cannot be used to create or remedy an omission.
State v. Ryan, 146 Wn. 114, 116-17, 261 P. 775 (1927)	Limitation that court authority for nunc pro tunc is to record judicial action actually taken	Used to emphasize that nunc pro tunc cannot make the record speak what was not done.
In re Marriage of Pratt, 99 Wn.2d 905, 911, 665 P.2d 400 (1983)	"Make the record speak the truth" limitation on nunc pro tunc	Quoted to show nunc pro tunc may not be used to record what ought to have been done but was not.
State v. Smissaert, 103 Wn.2d 636, 640-41, 694 P.2d 654 (1985)	Discussed by the State as permitting retroactive nunc pro tunc entry for important public purposes	The court held the State misconstrued Smissaert, noting it reiterated that retroactive entry is not proper to rectify acts that did not occur.
State v. Boseck, 45 Wn. App. 62, 66, 723 P.2d 1182 (1986)	Authority cited for public policy favoring juvenile adjudication	Cited by the State for policy arguments; the court held policy alone does not validate an otherwise improper nunc pro tunc.
State v. Petrich, 94 Wn.2d 291, 297, 616 P.2d 1219 (1980)	Principle that parties are bound by the terms of a valid nunc pro tunc	The court distinguished Petrich, noting it applied to a valid nunc pro tunc; here the order was invalid and thus challengable.

Court's Reasoning and Analysis

The court first accepted review of the unappealed nunc pro tunc order under RAP 2.4(b) because that order prejudicially affected the timely appeal of the restitution order. It then applied the established rule that juvenile court jurisdiction is strictly construed and, under RCW 13.40.300, may be extended past a juvenile's eighteenth birthday only if the extension is in effect prior to that birthday. The court reviewed the nature and limits of nunc pro tunc relief, explaining such orders may only record prior acts actually performed and cannot be used to remedy omissions. The record contained no indication any extension of jurisdiction had been made or discussed prior to Rosenbaum's 18th birthday; therefore there was no prior judicial act for a nunc pro tunc order to record. The court rejected the State's reliance on public policy and on Smissaert and Petrich, concluding policy does not validate an otherwise improper nunc pro tunc and that Petrich applies only to valid nunc pro tunc orders. Because the nunc pro tunc order was an improper attempt to remedy an omission, it was invalid, and the court lacked jurisdiction to enter the restitution order.

Holding and Implications

REVERSED

Holding: The Court of Appeals reversed the May 27, 1988 restitution order, concluding the nunc pro tunc order purporting to extend juvenile court jurisdiction after Rosenbaum's 18th birthday was invalid and the trial court therefore lacked jurisdiction to order restitution.

Implications: The direct effect is reversal of the restitution order against Rosenbaum. The opinion reiterates that nunc pro tunc orders may only record judicial actions actually taken and cannot be used to extend juvenile jurisdiction after majority where no prior extension existed; a party who proposed an invalid nunc pro tunc may nonetheless challenge its validity.

Show full summary ...

THE STATE OF WASHINGTON, Respondent, v. TRACY C. ROSENBAUM, Appellant.

[1] Appeal — Notice of Appeal — Timeliness — Extension of Jurisdiction. An order for which review was not sought in a timely manner and which purports to extend jurisdiction over a party may be reviewed under RAP 2.4(b) when review of a later related issue is timely sought.

[2] Juveniles — Juvenile Justice — Jurisdiction — Extension Past Majority — Timeliness. The jurisdiction of a juvenile court is strictly construed and, under RCW 13.40.300, cannot be extended past majority unless the extension is in effect prior to the 18th birthday of the person over whom jurisdiction is sought.

[3] Courts — Orders — Nunc Pro Tunc Order — Review — Discretion of Court. A nunc pro tunc order is reviewed only to determine if the court manifestly abused its discretion by making the order.

Courts — Orders — Nunc Pro Tunc Order — Purpose — Omission.

[5] Juveniles — Juvenile Justice — Jurisdiction — Extension Past Majority — Nunc Pro Tunc Order — Public Policy. The strong policy preference for juvenile court jurisdiction over offenders is not sufficient to validate a nunc pro tunc order purporting to extend juvenile court jurisdiction when the order is entered after an offender has attained the age of majority. Such an order is an abuse of judicial discretion.

[6] Courts — Orders — Nunc Pro Tunc Order — Review — Proponent as Challenger. A party which proposed an invalid nunc pro tunc order may later challenge its validity.

PEKELIS, J.

Tracy Rosenbaum appeals from the order of restitution entered following his conviction in juvenile court on one count of first degree theft and one count of second degree vehicle prowling. He alleges that the trial court lost jurisdiction with the passage of his 18th birthday, and a subsequent nunc pro tunc order purporting to extend jurisdiction was invalid.

On November 14, 1986, Tracy Rosenbaum was charged in juvenile court with one count of first degree theft and three counts of second degree vehicle prowling. Rosenbaum was 18 on December 2, 1986. On December 22, 1986, counsel for Rosenbaum presented an Agreed Order Extending Jurisdiction (nunc pro tunc). The court entered this order, extending juvenile court jurisdiction for a period of 12 months beginning December 1, 1986.

On December 30, 1986, Rosenbaum pleaded guilty to one count of first degree theft and one count of second degree vehicle prowling. The court sentenced him to 17 to 20 weeks of confinement in a disposition hearing on January 16, 1987. The disposition order provided that restitution issues would be resolved at a subsequent hearing.

Sixteen months later, on May 27, 1988, the court issued an order of restitution in an amount of $2,300.93. It is from this order that Rosenbaum has filed a timely appeal. The notice of appeal was filed on June 24, 1988; the time to appeal from the nunc pro tunc order of December 22, 1986, had long since passed. See RAP 5.2(a). However, Rosenbaum's assignment of error and related issues rest entirely on the validity of that prior order. In general, the scope of review in this court is limited to those decisions designated in the notice of appeal. RAP 2.4(a).

[1] However, RAP 2.4(b) provides that "[t]he appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review." Since it was the extension of jurisdiction which enabled the trial court to enter the later order of restitution, the nunc pro tunc order satisfies the technical requirements of the rule. In addition, the effect of the order was to give the court jurisdiction it otherwise had lost. For these reasons we accept review of the underlying order. See Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 134-35, 750 P.2d 1257, 756 P.2d 142 (1988); In re Marriage of Maxfield, 47 Wn. App. 699, 702-03, 737 P.2d 671 (1987).

Rosenbaum contends broadly that the juvenile court cannot regain jurisdiction once it has been lost. The State simply responds that the court had jurisdiction under the nunc pro tunc order. The State contends that this order was valid since it served the important public purpose of assuring Rosenbaum the advantages of being charged as a juvenile and because Rosenbaum himself proposed the nunc pro tunc order and agreed to have it entered.

[2] Juvenile court jurisdiction is strictly construed in this state. State v. Bushnell, 38 Wn. App. 809, 811, 690 P.2d 601 (1984). Juvenile court jurisdiction ends when a youth becomes 18 unless extended prior to that date. RCW 13.40.300; State v. Calderon, 102 Wn.2d 348, 353, 684 P.2d 1293 (1984). RCW 13.40.300(1)(a) provides in pertinent part:

(1) . . . A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of social and health services beyond the juvenile's eighteenth birthday only if prior to the juvenile's eighteenth birthday:

(a) Proceedings are pending seeking the adjudication of a juvenile offense and the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth birthday;

[3] A trial court has discretionary power to enter a nunc pro tunc judgment where justice so requires. Such discretionary action may not be disturbed on appeal except upon a clear showing that the ruling was manifestly unreasonable. In re Estate of Carter, 14 Wn. App. 271, 276, 540 P.2d 474 (1975).

[4] The purpose of a nunc pro tunc order is to record some prior act of the court which was actually performed but not entered into the record at that time. State v. Mehlhorn, 195 Wn. 690, 692, 82 P.2d 158 (1938). The authority of the court is limited to recording judicial action actually taken. State v. Ryan, 146 Wn. 114, 116-17, 261 P. 775 (1927). In recording a prior act of the court, a nunc pro tunc order "may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken." In re Marriage of Pratt, 99 Wn.2d 905, 911, 665 P.2d 400 (1983) (quoting Ryan, 146 Wn. at 117). Thus, a nunc pro tunc order is not a proper means to remedy omissions. See Mehlhorn, 195 Wn. at 692-93.

Neither party indicates that there had been any attempt to extend jurisdiction prior to the passage of Rosenbaum's 18th birthday. Nothing in the record indicates that there was even any discussion regarding the extension of jurisdiction prior to Rosenbaum's 18th birthday. We must conclude, therefore, that there had been no prior act of the court extending jurisdiction which had merely gone unrecorded.

Nonetheless, the State cites State v. Smissaert, 103 Wn.2d 636, 640-41, 694 P.2d 654 (1985), for the proposition that a nunc pro tunc order may be used retroactively to change a prior order where there is an important public purpose for doing so. It contends that it is clearly a matter of public policy to accord the juvenile defendant the advantages of being charged as a juvenile. See Calderon, 102 Wn.2d at 352-53; State v. Boseck, 45 Wn. App. 62, 66, 723 P.2d 1182 (1986).

[5] The State has misconstrued Smissaert. The court did not hold that public policy justified entry of an otherwise improper nunc pro tunc order. In fact, the court reiterated the rule that a retroactive entry is not proper to rectify the record as to acts which did not, but should have, occurred. Smissaert, 103 Wn.2d at 641. Thus, the public policy preference for juvenile court jurisdiction is not sufficient in itself to validate an otherwise improper nunc pro tunc order. [6] The State additionally contends that, even if the order is invalid, Rosenbaum should not be permitted to attack a nunc pro tunc order which he proposed and to which he agreed, relying on State v. Petrich, 94 Wn.2d 291, 297, 616 P.2d 1219 (1980). Again, the State misconstrues the authority it cites. The Petrich court held the State to the terms of a valid nunc pro tunc order. See Petrich, 94 Wn.2d at 294-97. We are faced here with a nunc pro tunc order which is invalid on its face.

We conclude that the nunc pro tunc order purporting to extend jurisdiction was an improper attempt to remedy a prior omission and was therefore invalid. We are thus constrained to hold that the court was without jurisdiction to enter the subsequent order of restitution and the order is reversed.

SCHOLFIELD and WEBSTER, JJ., concur.