Opinion
Nos. 57086-2-I; 57087-1-I.
May 8, 2006.
Appeals from a judgment of the Superior Court for King County, No. 94-1-05056-3, Ronald Kessler, J., entered October 17, 2005.
Counsel for Petitioner(s), Jeffrey C. Dernbach, King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Counsel for Respondent(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Reversed by unpublished per curiam opinion.
Cinque Garrett was charged in 1994 with murder in the second degree by two alternative means: intentional murder and felony murder predicated upon second degree assault. At his trial, the jury was instructed only on felony murder; the trial apparently proceeded as if intentional murder had not been charged. He was found guilty of second degree murder. His conviction was vacated by In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004).
On remand, the State filed an amended information charging him again with intentional second degree murder. Garrett and his co-defendant moved to dismiss the amended information on grounds of mandatory joinder and double jeopardy. The trial court granted the motion to dismiss. The State's motion for discretionary review in this court was stayed pending resolution of State v. Wright, 131 Wn. App. 474, 127 P.3d 742 (2006). Garrett objects to lifting the stay because a petition for review has been filed in Wright and therefore Wright is not final. A commissioner referred the motion to lift the stay and the motion for discretionary review to a panel.
Garrett does not contend that his case is distinguishable from Wright. In Wright, the jury was instructed only on felony murder and the intentional murder charge was left undecided. This court held that because Wright had not been acquitted of murder and had obtained a reversal of his conviction on grounds other than insufficient evidence, he remained in the same jeopardy that attached during the first trial. Wright reversed a dismissal of a second degree murder charge identical to Garrett's. Wright controls.
The motion to lift the stay is granted. Discretionary review is granted. The dismissal of the second degree murder charge is reversed and the case is remanded to the trial court for further proceedings.
GROSSE, DWYER and BECKER, JJ.