                                                                                                                FILED
                                                                                                           COURT OF APPEfr LS
                                                                                                                 Dh' ISION, II
                                                                                                         2 0 i 4 t1iAR 25   A114 8: S4
                                                                                                         ST

                                                                                                         n'




      IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                                DIVISION II

STATE OF WASHINGTON,                                                              No. 45057 -7 -II


                                     Respondent,


          V.



JANICE MAE LESTER,                                                         UNPUBLISHED OPINION




          LEE, J. —     Janice Mae Lester appeals from the sentence imposed following her pleas of

guilty to two      counts of   forgery. She argues that the trial court ( 1) erred in imposing restitution

for an uncharged crime and (2) erred in imposing legal financial obligations. The State concedes
                                                          I
the first   error and we remand      for resentencing.


          Lester   pleaded    guilty to two   counts of   forgery,   one   for passing     a counterfeit $ 20       bill at a


Travelodge      and one   for passing two     counterfeit $20   bills   at -
                                                                           a   fruit   stand.   At sentencing, the trial

court    imposed the     following legal financial      obligations: $     500   victim assessment, $         200 criminal


filing   fee, $ 600   court- appointed   attorney fee, $ 100 DNA        collection       fee   and $   1, 000 jail recovery

cost. The court made the following finding:,

            The court has considered the total amount owing, the defendant' s present and
            future ability to pay legal financial obligations, including the defendant' s financial
            resources   and   the likelihood that the defendant' s         status will change.          The court
            makes the following specific findings:... .

Clerk' s Papers ( CP) at 39.



1
    A commissioner of this court initially considered Lester' s appeal as a motion on the merits
under    RAP 18. 14     and   then transferred it to   a panel of judges.
No. 45057 -7 -II



          The judgment and sentence form did not contain a box, as most such forms do, stating

that it found " that the defendant has' the ability or likely future ability to pay the legal financial

obligations       imposed herein.          RCW 9. 94A.753."             The court did not check either of the boxes


stating that it found:

                      The following extraordinary circumstances exist that make restitution
              inappropriate ( RCW 9. 94A.753):



                   The .defendant has the          present means        to pay      costs of      incarceration.     RCW
              9. 94A.760.


CPat39.


              The trial   court   then   ordered restitution as         follows: $ 40 to         Big   Tom'   s         In, $ 40 to
                                                                                                                  Drive -

          Howe112

Austin                  and $ 20 to Travelodge.


              First, Lester argues that because she had not been charged with a crime against Big

Tom' s Drive - and because she had not agreed to pay restitution for uncharged offenses, the
             In

trial   court erred       in ordering her to pay        restitution   to   Big     Tom'   s         In. State v. Osborne, 140
                                                                                              Drive -


Wn.     App.     38, 42, 163 P. 3d 799 ( 2007). The State concedes that Lester is correct. We accept the


State' s concession.


              Second, Lester argues that the court erred in imposing the legal financial obligations

because no evidence was presented that she has the ability or likely future ability to pay them.

State    v.   Bertrand, 165 Wn.          App.   393, 404, 267 P, 3d 511 ( 2011), review denied, 175 Wn.2d 1014


 2012).         Before making       such    a    finding,   the trial      court   must       take " into account the financial


resources        of   the defendant        and    the   nature   of   the    burden"          imposed by the legal financial

obligations.          Bertrand, 165 Wn. App at 404 ( quoting State v. Baldwin, 63 Wn. App. 303, 312,


2 Howell is apparently the owner of the fruit stand.
                                                                  2
No. 45057 -7 -II




818 P. 2d 1116, 837 P. 2d 646 ( 1991)).   Because we remand for resentencing, Lester can raise this

issue in the trial court.


        We remand to the trial court to strike the restitution order as to Big Tom' s Drive - and
                                                                                            In

to address Lester' s ability to pay the legal financial obligations.

        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.




                                                                        Lee, J.




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