Proposed Rules Archives

• Proposed Changes to CrR 7.8 - Relief from Judgment or Order (in Word Format)
• No comments were submitted.

(A) Name of Proponent: Washington State Bar Association.

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee.

(C) Purpose: This suggested amendment is based on a recommendation originally submitted by the Washington Association of Prosecuting Attorneys (WAPA). The suggested amendment to CrR 7.8 provides that a motion to vacate a criminal judgment will be transferred to the Court of Appeals for consideration as a personal restraint petition rather than decided by the superior court, except in enumerated circumstances.

A CrR 7.8 motion to vacate is a form of collateral attack on a criminal judgment. Most such motions are not subject to a definite deadline but can be made “within a reasonable time.” In many cases, these motions are filed by pro se defendants after the direct appeal and personal restraint processes have been exhausted. Because such motions are classified as collateral attacks, they are subject to a number of procedural restrictions imposed by statute, including the restriction that a collateral attack may not be filed more than one year after judgment (unless an exception applies). See RCW 10.73.090(2); see also RCW 10.73.100; RCW 10.73.140. In many cases, such a pro se motion is clearly procedurally barred and should be denied, but if the superior court denies the motion, the defendant is entitled to appointed counsel because such an order is appealable under RAP 2.2. An abuse of discretion standard applies on appeal; hence, in the case of procedurally barred motions, there is little appointed counsel can do. Substantial time and effort can be consumed in these abortive appellate proceedings.

Currently, CrR 7.8 permits transfer of a motion to vacate to the Court of Appeals “if such transfer would serve the ends of justice.” The WSBA Court Rules and Procedures Committee was advised that the transfer procedure is routinely and successfully invoked in King County Superior Court. The suggested rule will require the superior court to transfer all motions directly to the Court of Appeals for initial disposition as personal restrain petitions. Excepted are motions not barred by RCW 10.73.090 if either (1) the defendant makes a substantial showing that he or she is entitled to relief or (2) resolution of the motion requires a factual hearing. These situations are appropriately addressed by the superior court. In all other cases, once transferred, the more flexible procedures for initial consideration of a personal restraint petition will apply. See RAP 16.11.

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.