State of Washington v. Gerald Keith Moccardine

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
GERALD KEITH MOCCARDINE,
Appellant.
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No. 37186-7-III
UNPUBLISHED OPINION
KORSMO, A.C.J. — Gerald Moccardine appeals from two convictions for violating
a protection order. The State concedes that an essential element was missing from each
charge. We agree and reverse the convictions.
Little needs to be said about the facts or procedural history. The charging
document alleged, in each instance, that Mr. Moccardine “violated the provision(s) of a
valid protection order.” Clerk’s Papers at 1. The statute, however, requires proof that
there is a valid protection order and that the defendant “knows of the order” and violates
it. RCW 26.50.110(1)(a).
We agree with the parties that the information filed against Mr. Moccardine lacked
an allegation that he knew about the valid protection order. When a charging document
lacks an essential element, the remedy is to reverse the conviction(s) without prejudice to
FILED
NOVEMBER 12, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 37186-7-III
State v. Moccardine
2
recharge the offense(s). State v. Murry, 13 Wn. App. 2d 542, 551-553, 465 P.3d 330
(2020).
The convictions are reversed without prejudice.
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.
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Korsmo, A.C.J.
WE CONCUR:
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Fearing, J.
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Lawrence-Berrey, J.