A state appellate court yesterday overturned a Grays Harbor County judge's unusual order that banished a murderer from returning to the county after he serves out his prison sentence.

David Schimelpfenig was convicted of murdering Marjorie Benner, 72, in her Hoquiam home in November 2002. In sentencing Schimelpfenig, 43, to 33 years in prison, the judge also barred him from returning to the county in an effort to safeguard Benner's family. But in the appeals-court opinion, Judge Christine Quinn-Brintnall wrote that the ban violated Schimelpfenig's constitutional right to travel and there was no evidence Schimelpfenig posed a threat to Benner's family.

"Banishment orders conjure memories from the script of some old Grade-B cowboy movie where the sheriff tells the bad guy to 'get out of Dodge,' " Quinn-Brintnall wrote.

Suzanne Lee Elliott, Schimelpfenig's attorney, said the court has already implemented other tools to protect the victim's family, including no-contact orders that prohibit Schimelpfenig from getting in touch with the family.

The banishment ruling was hasty and went too far, Elliott said.

"It was an emotional case. As any case where a family member has been murdered, the family of the victim was devastated," Elliott said. "I think the judge kind of responded to that, other than thinking it through."

She said the banishment would have been difficult for Schimelpfenig, who is developmentally disabled and will need the help of his family members living in the county after serving his time.

But some Benner family members said the banishment should have been upheld.

"We went through enough because of him," said Linda Snavely, 56, Benner's oldest daughter. "I don't think it was fair to put him in our face ... he doesn't belong living in our back yard if he ever gets out of jail."

While sentences prohibiting someone from entering a certain area or coming in contact with specific people or groups aren't uncommon, Seattle University School of Law assistant professor David Boerner said there is little history of banishment cases keeping someone out of a city or county.

"I've never heard it," Boerner said. "It used to be done. The British did it, sent people to Australia. And the French did it to Devil's Island."

Quinn-Brintnall's opinion cited a few decisions in other jurisdictions where banishment had been upheld. In Tallahassee, Fla., a man was banished for five years in 1991 for tampering with a witness, and a Colorado Supreme Court banished a man from two cities for two years after assaulting his girlfriend and repeatedly ignoring no-contact and restraining orders, the decision read.

Locally, a Snohomish County Superior Court judge placed teens Simon Roberts and Adrian Guthrie in the custody of fellow Tlingit tribal members, who banished them to separate islands in Alaska for beating and robbing a pizza deliveryman. But problems with unauthorized visits and tribal infighting forced an early end to that experiment, and the judge later sentenced the youths to traditional prison terms.

Schimelpfenig had also successfully contested his 33-year sentence because it had been lengthened under the state's exceptional sentencing guidelines, which have since been ruled unconstitutional. The appellate court ordered that Schimelpfenig be returned to Superior Court for sentencing within the standard range of between 20 years and about 26 ½ years.

Ari Bloomekatz: 206-464-2540 or abloomekatz@seattletimes.com