State v. Schwab , 163 Wash. 2d 664 ( 2008 )

¶38

(concurring in dissent) — Justice Sanders has correctly stated the law. Just last year this court held that “a court has no authority to ‘take a verdict on another charge . . . , find that it violates double jeopardy . . . , not sentence the defendant ... on it[,] and just . . . hold it in abeyance for a later time.’ ” State v. Womac, 160 Wn.2d 643, 659, 160 P.3d 40 (2007) (alterations in original) (quoting 7 Verbatim Report of Proceedings at 1074). But today, the majority affirms a lower court reinstating a manslaughter conviction magically “in abeyance” because his murder conviction was overturned on other grounds. I agree with the dissent; this is not allowed under double jeopardy.

J.M. Johnson, J.

¶39 I write separately, however, to briefly observe that it is not apparent that Schwab’s conviction for felony murder should have been overturned. That crime was predicated on two felonies: assault, which the decision In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) did not allow,⁶ and theft, which has always been a valid predicate felony. The State tried Schwab for the crime of felony murder, and the jury returned a guilty verdict without specifying the predicate felony (likely finding both). If a rational jury could have found theft beyond a reasonable doubt — which it surely could — the felony murder should stand. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).

¶40 For reasons not apparent on this record, the State conceded that Andress nullified Schwab’s felony murder conviction, and the courts have implemented this concession. Those who commit crimes and are convicted for an offense appropriately face one, and only one, judgment. Thus, I concur in dissent.

6 Temporarily, to be sure, as the legislature quickly acted to expressly provide assault as a predicate felony. ROW 9A.32.050(l)(b) (Laws op 2003, eh. 3, § 2).