                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 17, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

    STATE OF WASHINGTON,                                             No. 47000-4-II

                                Respondent,

         v.

    JEROME CEASAR ALVERTO,                                    UNPUBLISHED OPINION

                                Appellant.


        LEE, J. — Jerome Ceasar Alverto appeals from the trial court’s order denying his CrR 7.8

motion for new trial. Concluding that the trial court failed to follow CrR 7.8(c)(2), we reverse its

order and remand.

        On September 12, 2008, the trial court entered a judgment and sentence finding Alverto

guilty of attempted first degree murder, first degree burglary and first degree robbery. We affirmed

his convictions on direct appeal and issued our mandate on February 22, 2011. On July 29, 2014,

Alverto filed a pro se CrR 7.8 motion for new trial in the trial court, asserting newly discovered

evidence, fabricated evidence and ineffective assistance of counsel.1 On November 26, 2014, the

trial court entered the following order:




1
  Alverto had filed an earlier pro se motion for new trial under CrR 7.8, which the trial court
transferred to us to be considered as a personal restraint petition. Alverto then voluntarily
withdrew his petition and we dismissed it without prejudice.
No. 47000-4-II


                THIS MATTER having come before the Court on Defendant’s Motion for
       New Trial, filed by Mr. Alverto on July 29, 2014, and the Court having reviewed
       the file, records and pleadings submitted;

                 IT IS HEREBY ORDERED that Defendant’s Motion for New Trial is
       denied.

Clerk’s Papers at 136.

       Under CrR 7.8(c)(2), the trial court

       shall transfer a motion filed by a defendant to the Court of Appeals for
       consideration as a personal restraint petition unless the court determines that the
       motion is not barred by RCW 10.73.090 and either (i) the defendant has made a
       substantial showing that he or she is entitled to relief or (ii) resolution of the motion
       will require a factual hearing.

       Under this rule, a trial court does not have the authority to deny an untimely CrR 7.8

motion. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008). It must instead transfer such

a motion to us to be considered as a personal restraint petition. Id. Alverto’s conviction became

final on February 22, 2011, when we issued the mandate of his direct appeal.                       RCW

10.73.090(3)(b). His July 29, 2014 motion for new trial was filed more than one year after his

conviction became final; therefore, it is untimely under RCW 10.73.090(1). Thus, trial court

exceeded its authority when it denied Alverto’s motion for new trial instead of transferring it to us

to be considered as a personal restraint petition.

       The State concedes that Smith applies to the order denying Alverto’s motion for new trial,

but it asks that we abandon Smith in favor of a rule under which we would convert a notice of

appeal from a wrongly denied CrR 7.8 motion into a personal restraint petition. In order for us to

abandon Smith, that decision must be shown to be both incorrect and harmful. State v. Abdulle,

174 Wn.2d 411, 415, 275 P.3d 1113 (2012). The State fails to show that Smith is either incorrect

or harmful. The rationale for rejecting the State’s proposed rule is fully discussed in Smith, 144




                                                     2
No. 47000-4-II


Wn. App. at 863-64, and the State’s arguments for rejecting that rationale are unpersuasive. We

decline to abandon Smith.

        We reverse the trial court’s order denying Alverto’s CrR 7.8 motion for new trial and

remand this matter to the trial court to transfer the motion to us for consideration as a personal

restraint petition.

        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.
 We concur:



                      Johanson, P.J.




                       Melnick, J.




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