                                                                        "HLEG
                                                                COURT OF APPEALS Ply T
                                                                 STATE OF IVASHVzTO,!
                                                                2017 JW! 12 Li 8:57
      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 73852-6-1
                      Respondent,
        V.                                      DIVISION ONE

 LISA LYNN MUNRO,                               UNPUBLISHED OPINION

                      Appellant.                FILED: June 12, 2017


       LEACH, J. — An order adjusting the monthly amount to be paid on a

restitution judgment does not amend that judgment. Thus, that order is not

appealable as a matter of right. Although this court can treat an appeal as a motion

for discretionary review, Lisa Munro has presented no persuasive reason why this

court should do so here. We dismiss this appeal.

       Munro pleaded guilty to first degree theft. In her plea agreement, Munro

agreed to pay restitution in full to the victims and their respective creditors. The

court sentenced Munro to three months of electronic home detention and payment

of restitution to the victims. After a hearing, the court entered an order setting

restitution at $58,560.97.1 Munro appealed. This court dismissed her appeal for

failure to comply with the conditions of the commissioner's ruling. Munro did not

further appeal the order of restitution.




      1 The order required Munro to repay $700.00 to one individual and
$39,671.16 to the other. The remaining $18,189.81 owed to credit card companies
was to be paid only after the individuals were reimbursed.
No. 73852-6-1 /2



       Over the years, the trial court made several attempts to enforce the

restitution order, to no avail. From 2009 to the present day, the court held multiple

hearings to obtain Munro's compliance with the conditions set forth in her

sentence.2 The trial court repeatedly found that Munro willfully violated her

sentence. In multiple review hearings, the trial court asked Munro to provide

documentation supporting her claim of disability. The meager documentation

Munro supplied to the court falls far short of that requested. Over the course of

several years, the court set monthly payments at $200 a month, $25, and now

$500. Munro challenges the order setting the $500 monthly payment.

                                        Analysis

       A party may seek appellate review of a trial court's decision either as a

matter of right or by permission from the reviewing court.3 RAP 2.2(a) lists the

decisions that may be appealed as a matter of right. Munro argues that RAP

2.2(a)(9) authorizes her appeal. This rule permits an appeal from an order on a

motion, a new trial, or an amendment of a judgment. She claims that the

challenged order amended the restitution judgment.

       But the trial court's order setting the periodic amount to be paid on a

restitution judgment can be modified or challenged at any time. For this reason, it

is neither an amendment of a final judgment nor a final judgment.4 To obtain relief



       2 The trial court denied   Munro's motion to stay the violation hearing pending
her appeal.
       3 RAP 2.1(a).
       4 See RAP 2.2(a)(1).

                                           -2-
No. 73852-6-1 / 3



from an order setting the amount of a periodic payment, Munro's recourse is to

challenge the payment amount in the trial court.

        State v. Smits5 supports our decision. There, we found that an order

denying a request to terminate legal financial obligations (LF0s) was not final

because it is conditional and the court can modify the obligations at any time.

Similarly, here, the amount of payment can be changed at any time. The Smits

court cited with approval the commissioner's ruling which succinctly set forth the

underlying issues on appealability. The rationale of that ruling applies equally

here:
                "The denial of a motion to waive or terminate LFO[ ]s is not a
        final judgment appealable under RAP 2.2(a)(1), a denial of a motion
        to amend or to vacate the judgment and sentence, appealable under
        RAP 2.2(a)(9) or (10), or a final order after judgment which affects a
        substantial right, appealable under RAP 2.2(a)(13). Granting a
        motion to waive or terminate legal financial obligations would not
        change the amount he has been ordered to pay. Rather it would
        relieve him from the obligation of completing payment or alter the
        terms of payment. Regardless of how it is titled, a motion to change
        the payment requirements for LFOs is not truly a motion to amend.
        Nor is the order a 'final' order because Smits is permitted to move for
        remission of his obligations at any time, regardless of whether his
        previous requests have been denied. RCW 10.01.160(4).. . .

                ". . . Because the motion to waive or terminate legal financial
        obligations is not truly a motion to amend the judgment and because
        the trial court's decision denying relief is not the final word on legal
        financial obligations, it does appear that Smits's only recourse is
        discretionary review. Smits has not made any argument for
        discretionary review.         Accordingly, these matters will be
        dismissed."[6]




              v. Smits, 152 Wn. App 514, 524, 216 P.3d 1097 (2009).
        5 State
      6 Smits, 152 Wn. App. at 518 (quoting Commissioner's Ruling, State v.
Smits, Nos. 62243-9-1 and 62248-0-1 (Wash. Ct. App. Oct. 13, 2008)).
                                          -3-
No. 73852-6-1 /4



Likewise, here, the trial court simply changed the monthly amount to be paid. It

did not alter the amount of the judgment itself. Moreover, the trial court continues

to give Munro opportunities to present evidence that the court should adjust the

periodic payment amount. She merely has to supply the information that the trial

court has repeatedly requested.

       Nor, like Smits, do we find any reason to grant discretionary review. This

court may grant discretionary review under RAP 2.3(a) and (b). However, the

underlying issue does not meet the criteria set forth in RAP 2.3(b). Munro has not

shown that the trial court has committed any obvious error or probable error,

departed from the usual course of judicial proceedings, or certified or found that

the parties have stipulated that the order involves a controlling question of law

needing clarification. Nor does it rise to the level of any considerations governing

acceptance of review in RAP 2.3(d).

       Finally, Munro asks this court to deny the State appellate costs based on

her indigency. We generally award appellate costs to the substantially prevailing

party on review. However, when a trial court makes a finding of indigency, that

finding continues throughout review "unless the commissioner or clerk determines

by a preponderance of the evidence that the offender's financial circumstances

have significantly improved since the last determination of indigency."7 Here, the

trial court found Munro indigent. If the State has evidence indicating significant




      7 RAP   14.2.
                                        -4-
No. 73852-6-1 / 5



improvement in Munro's financial circumstances since the trial court's finding, it

may file a motion for costs with the commissioner.

       Dismissed.




WE CONCUR:




                                       -5-
