Opinion
No. 36008-0-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-01690-6, Lisa R. Worswick and Frederick W. Fleming, JJ., entered February 16, 2007.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Penoyar, JJ.
Michael Alan Dunlap appeals his convictions for second degree identity theft and two counts of second degree possession of stolen property, following a bench trial based exclusively on the police report. Because the judge who signed the findings of fact and conclusions of law from the bench trial was not the same judge who conducted the trial and did not make any independent determinations based on the existing record, we vacate Dunlap's conviction and sentence and remand to the original trial court judge for entry of his findings and conclusions and, if necessary, for resentencing.
BACKGROUND
After a police officer discovered a variety of identification and credit cards in the car Dunlap was driving, the State charged Dunlap with one count of second degree identity theft and two charges of second degree stolen property. The case proceeded to a bench trial before the Hon. Frederick W. Fleming. The parties agreed that Judge Fleming could make his factual determinations based solely on the arresting officer's report.
In an oral ruling, Judge Fleming found Dunlap guilty and directed the parties to prepare the written findings of fact and conclusions of law. Judge Fleming did not, however, sign the written findings and conclusions. Instead, because Judge Fleming was on vacation, the parties presented the written findings and conclusions to a second judge, the Hon. Lisa Worswick. Both parties agreed that the findings and conclusions they presented represented Judge Fleming's findings and conclusions and that Judge Worswick could sign the findings and conclusions and sentence Dunlap because Judge Fleming was unavailable. Without reviewing the record from the bench trial or making any of her own factual determinations, Judge Worswick signed the parties' written findings and conclusions and sentenced Dunlap.
Dunlap then appealed his convictions. In their briefing on appeal, neither party addressed whether the findings and conclusions were lawfully entered. We requested supplemental briefing on this issue and now hold that it is dispositive. Accordingly, we do not reach any of the issues Dunlap raises in his direct appeal or his Statement of Additional Grounds for Review.
RAP 10.10.
DISCUSSION
"The rule is well settled that a successor judge is without authority to enter findings of fact on the basis of testimony heard by a predecessor judge." State v. Bryant, 65 Wn. App. 547, 549, 829 P.2d 209 (1992) (citing Tacoma Recycling, Inc. v. Capital Material Handling Co., 42 Wn. App. 439, 711 P.2d 388 (1985); In the Matter of the Welfare of Woods, 20 Wn. App. 515, 581 P.2d 587 (1978); Wold v. Wold, 7 Wn. App. 872, 503 P.2d 118 (1972)). "Taken together, the case law and civil and criminal rules set forth the rule that a successor judge only has the authority to do acts which do not require finding facts. Only the judge who has heard evidence has the authority to find facts." Bryant, 65 Wn. App. at 550 (citing CrR 6.11, CR 63). See Tacoma Recycling, Inc., 42 Wn. App. at 440; Woods, 20 Wn. App. at 517; Wold, 1 Wn. App. at 877-78); see also RCW 2.28.030(2) (A judicial officer "shall not act as such in a court of which he is a member in any of the following cases: . . . (2) When he was not present and sitting as a member of the court at the hearing of a matter submitted for its decision."). "The rule is applied even where the prior judge had entered an oral decision or a memorandum decision." Bryant, 65 Wn. App. at 549 (citing Hawley v. Priest Rapids Ice Cold Storage Co., Ill Wash. 71, 19 P.2d 400 (1933); State ex rel. Wilson v. Kay, 164 Wash. 685, 4 P.2d 498 (1931)). This is true because neither an oral ruling nor a memorandum decision is a final order. See Bryant, 65 Wn. App. at 549; see also Wilson, 164 Wash, at 690-91.
Although a successor judge can make findings of fact based on the original record when the parties agree to allow the successor judge to rely on the record, see In the Matter of the Marriage of Crosetto, 101 Wn. App. 89, 97-98, 1 P.3d 1180 (2000), that is not what occurred here. Here, the parties agreed that the written findings and conclusions represented Judge Fleming's findings and conclusions and that Judge Worswick could, therefore, sign them; the parties at no time agreed that Judge Worswick could rely on the record to make her own findings of fact or conclusions of law; and nothing in the record shows that she adopted the written findings and conclusions as her own based on the original record.
When, as here, there is no indication in the record that the second judge reviewed the evidence or the original record, the second judge is "without authority to sign the findings and conclusions under any procedure." Bryant, 65 Wn. App. at 551 (emphasis added). Furthermore, this defect cannot be waived. See RCW 2.28.030 (providing that the parties may waive the disqualifications stated in RCW 2.28.030(3) and (4), but not in RCW 2.28.030(2), the subsection that applies here). Because Judge Worswick exceeded her authority when she signed the findings of fact and conclusions of law that supported Dunlap's convictions, those convictions and his subsequent sentence are vacated and this matter is remanded back to Judge Fleming for entry of written findings of fact and conclusions of law and, if necessary, resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, J., concur.