James R. Roberts seeks relief from personal restraint imposed for his 1990 Spokane County jury conviction of second degree felony murder involving the predicate felony of second degree assault. Mr. Roberts claims his conviction must be vacated in light of our Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976).1 We stayed Mr. Roberts' petition pending a decision and issuance of a certificate of finality in In re Personal Restraint of Hinton, ___ Wn.2d ___, 100 P.3d 801 (2004). The Hinton decision became final on December 14, 2004. We now lift the stay in this petition.
In Hinton, the court held that the decision in Andress applied retroactively to personal restraint petitioners convicted of the crime of second degree felony murder predicated on assault. Hinton, 100 P.3d at 804. Therefore, the petitioners' judgments were facially invalid and not subject to the one year time limit of RCW 10.73.090(1) for collateral attack. The court also held that the 2003 legislative amendment that included assault as a predicate crime for second degree felony murder was not retroactive because retroactive application would violate the ex post facto clauses of the state and federal constitutions. Hinton, 100 P.3d at 805. The court thus vacated the petitioners' convictions.
The holdings in Andress and Hinton apply to Mr. Roberts' case and entitle him to relief.
Accordingly, we grant Mr. Roberts' personal restraint petition to the extent that his second degree felony murder conviction and sentence is vacated and his case remanded to the Spokane County Superior Court for further lawful proceedings consistent with Andress and Hinton. Hinton, 100 P.3d at 805 (citing Andress,147 Wn.2d at 617 n. 5).
The court has determined that 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.
Kato, C.J.