                                                                  FILED 

                                                              NOVEMBER 25, 2014 

                                                            In the Office of the Clerk of Court 

                                                          W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                            )        No. 31540-1-III
                                                )
                       Respondent,              )
                                                )
                v.                              )        UNPUBLISHED OPINION
                                                )
JOSEPH DEAN BYRD,                               )
                                                )
                       Appellant.               )

          LAWRENC&BERREY, 1.         Joseph Dean Byrd appeals the legal financial

obligations· (LFOs) imposed by the trial court during sentencing. He contends the trial

court erred by finding he has the ability or likely future ability to pay these obligations. In

a statement of additional grounds for review, he contends that his convictions for second

degree robbery and third degree theft violate double jeopardy. Finding no error, we

affirm.

                                            FACTS

          A jury found Mr. Byrd guilty of second degree robbery and third degree theft. At

sentencing, the trial court imposed the following legal financial obligations requested by

the State: $500 victim assessment, $200 criminal tiling fee, and $1,500 court appointed
No. 31540-1-III
State v. Byrd


attorney recoupment fee. Boilerplate language within the judgment and sentence stated:

       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.

Clerk's Papers (CP) at 24.

      At sentencing, neither party made any presentation addressing Mr. Byrd's ability to

pay legal financial obligations. Mr. Byrd did not object to the costs imposed or to the

boilerplate language in the judgment and sentence related to his ability to pay. The court

ordered LFOs as follows:

             The total financial obligation is $2,200. It will bear interest by law
      from now until it is paid. Mr. Byrd's inmate account will be subject to
      withdrawals on a percentage basis. After his release he's to make payments
      as directed by [the Department of Corrections], and after his supervision as
      directed by the clerk.

Report of Proceedings (Mar. 25, 20l3) at 18.

      Pursuant to Mr. Byrd's request, the court dismissed the third degree theft, finding

it had merged into the second degree robbery conviction. The court imposed a 50-month

standard range sentence.




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No. 31540-1-111
State v. Byrd


                                         ANALYSIS

        For the first time on appeal, Mr. Byrd contends that the trial court erred in finding

that he had the ability to pay legal financial obligations without conducting any inquiry

into his financial circumstances. Accordingly, he asks us to strike the directive to pay the

LFOs.

        Whenever a person is convicted in superior court, the court may order the payment

oflegal financial obligations as part of the sentence. RCW 9.94A.760(1). Courts may

impose legal financial obligations if a defendant has or will have the ability to pay. State

v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). 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 LFOs. ld. This court reviews a trial court's

determination of an offender's financial resources and ability to pay for clear error. ld.

        Two of the LFOs at issue here are mandatory. The $500 victim assessment is

required by RCW 7.68.035, irrespective of ability to pay. State v. Curry, 62 Wn. App.

676,681,814 P.2d 1252 (1991), aff'd, 118 Wn.2d 911,829 P.2d 166 (1992). And the

$200 criminal filing fee is required by RCW 36. 18.020(2)(h). Because these LFOs are

mandatory, they do not require the trial court to consider Mr. Byrd's ability to pay.




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No. 31540-1-111
State v. Byrd


       The only discretionary LFO was the $1,500 appointed counsel recoupment fee.

However, Mr. Byrd did not object at sentencing to the finding of his current or likely

future ability to pay. Until our Supreme Court decides otherwise, the rule established that

a defendant may not challenge a determination regarding his or her ability to pay LFOs

for the first time on appeal. State v. Blazina, 174 Wn. App. 906,911,301 P.3d 492,

review granted, 178 Wn.2d 1010,311 P.3d 27 (2013); State v. Calvin, 176 Wn. App. 1,

302 P.3d 509 (20 13),petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013); State

v. Kuster, 175 Wn. App. 420,425, 306 P.3d 1022 (2013). Consistent with these decisions

we decline to allow Mr. Byrd to challenge that finding for the first time on appeal. See

also RAP 2.5(a).

       We also agree with the State that the issue is not ripe for review. Mr. Byrd may

petition the court at any time for remission or modification of the payments on the basis

of manifest hardship. RCW 10.0 1.160(4); Baldwin, 63 Wn. App. at 310-11. The initial

imposition of court costs at sentencing is predicated on the determination that the

defendant either has or will have the ability to pay. RCW 10.01.160(3). Because this

determination is somewhat "speculative," the time to examine a defendant's ability to pay

is when the government seeks to collect the obligation. State v. Smits, 152 Wn. App. 514,

523-24,216 P.3d 1097 (2009). Mr. Byrd may challenge the trial court's imposition of



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No. 31540-1-III
State v. Byrd


LFOs when the government seeks to collect them.

       In his pro se statement of additional grounds for review (SAG), Mr. Byrd contends

that his judgment and sentence is invalid due to a double jeopardy violation. Specifically,

he contends that the convictions for second degree robbery and third degree theft violate

double jeopardy and, therefore, the court erred by imposing "57 Months for robbery in the

second degree plus 364 days in theft in the third degree." SAG at 5. "We review alleged

double jeopardy violations de novo." State v. Lust, 174 Wn. App. 887, 890,300 P.3d 846

(2013).

       The state and federal double jeopardy clauses protect a defendant from being

punished multiple times for the same offense. State v. Adel, 136 Wn.2d 629,632,965

P.2d 1072 (1998). "Where a defendant's act supports charges under two criminal

statutes, a court weighing a double jeopardy challenge must determine whether, in light of

legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint

a/Orange, 152 Wn.2d 795,815, 100 P.3d 291 (2004).

       Mr. Byrd misunderstands his sentence. The trial court dismissed the third degree

theft count and imposed a mid-range standard range sentence of 50 months for the second

degree robbery conviction. CP at 25. Thus, no double jeopardy issue arises.




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No. 31540-1-111
State v. Byrd


       We affirm.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berrey, 1.

WE CONCUR:




                                         Korsmo, J.   ?




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