118 Wn.2d 449, P.2d 1111, PERSONAL RESTRAINT OF VEGA

Feb. 1992

[No. 58176-2. Department Two. February 13, 1992.]

PERSONAL RESTRAINT OF VEGA

In the Matter of the Personal Restraint of JUAN D. VEGA, JR., Petitioner.

[1] Personal Restraint Petition Timeliness Notice Persons Entitled. Under RCW 10.73.120, the State must try to provide notice to convicts of the 1-year time limitation for bringing collateral attacks on their Washington felony convictions and sentences no matter where the convicts are incarcerated.

[2] Personal Restraint Petition Timeliness Notice Absence Effect. When the State has made no attempt to notify a convict of the 1-year time limitation for collaterally attacking the convict's Washington felony conviction or sentence as required by RCW 10.73.120, the convict is not limited to the 1-year limitation and a personal restraint petition filed after the expiration of 1 year is timely.     

Nature of Action: The petitioner sought relief from personal restraint.

Court of Appeals: The court dismissed the petition by an order dated April 30, 1991.

Supreme Court: Holding that the State was required to attempt to notify the petitioner of the 1-year limitation on bringing a collateral attack on his judgment and sentence, as required by RCW 10.73.120, and that by not having received such notice, the petitioner is not limited to the 1-year limitation, the court grants the petitioner's motion for extension of time and remands to the Court of Appeals with directions to consider the petition on its merits.

Juan D. Vega, Jr., pro se.

Kenneth O. Eikenberry, Attorney General, and Kathleen D. Mix and Thomas J. Young, Assistants, for respondent.

PER CURIAM. On May 23, 1991, petitioner Juan D. Vega, Jr., filed a motion for discretionary review of a Court of Appeals decision dismissing his personal restraint petition as untimely. The commissioner of this court denied that motion on October 16, 1991. Mr. Vega then filed an untimely motion to modify the commissioner's ruling, together with a motion for extension of time. Department Two of this court considered both motions on December 3, 1991. We now grant the motion for extension of time, modify the commissioner's ruling, and remand the case to the Court of Appeals with directions to consider Vega's petition on its merits.

BACKGROUND

Petitioner Vega was serving a federal prison sentence at the time the Washington Legislature enacted an amendment to RCW 10.73 which provides in pertinent part:

No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

RCW 10.73.090(1); Laws of 1989, ch. 395, 1. Petitioner Vega's Washington conviction became final on June 5, 1989. RCW 10.73.120 provides that the State try to provide notice of the 1-year time limit contained in RCW 10.73.090 to persons already serving a term of incarceration at the time of the change in deadline, declaring:

As soon as practicable after July 23, 1989, the department of corrections shall attempt to advise the following persons of the time limit specified in RCW 10.73.090 and 10.73.100: Every person who, on July 23, 1989, is serving a term of incarceration, probation, parole, or community supervision pursuant to conviction of a felony.

(Italics ours.)

There is no factual dispute that the Department of Corrections neither notified petitioner Vega nor attempted to notify petitioner Vega of the change of statute limiting filing of personal restraint petitions to within 1 year from the date a judgment becomes final.

ANALYSIS

[1] We do not agree that the language of RCW 10.73.120 is ambiguous as is argued by the Department of Corrections. RCW 10.73.120 defines persons to be notified as "Every person who . . . is serving a term of incarceration . . . pursuant to conviction of a felony." The language is all inclusive and encompasses those defendants convicted in Washington who are serving sentences in other jurisdictions or in a federal institution, as well as those defendants serving sentences in Washington State institutions.

[2] Accordingly, since there had been no attempt to notify petitioner Vega, as required by law, that the statute permitting filing personal restraint petitions had been amended to limit the time period for filing to 1 year from the date the judgment became final, petitioner Vega is not so limited and his petition must be treated as timely. Had there been actual notification or even attempted notification, the petition would have been properly denied.

The Court of Appeals is hereby directed, upon remand, to consider petitioner Vega's personal restraint petition on the merits, accepting its filing as being timely.