State v. Farmer, 31634

• Decision Date: 23 November 1951
• Docket Number: No. 31634,31634
• Citation: 237 P.2d 734,39 Wn.2d 675
• Court: Washington Supreme Court
• Parties: STATE, v. FARMER.

Page 675

39 Wn.2d 675

237 P.2d 734

STATE, v. FARMER.

No. 31634.

Supreme Court of Washington, en Banc.

Nov. 23, 1951.

E. M. Farmer, Seattle, for appellant.

Charles O. Carroll, John C. Vertrees and V. D. Bradeson, all of Seattle, for respondent.

WEAVER, Justice.

In December, 1948, defendant was charged in the superior court for King county with the crime of abandonment and nonsupport of his son, a child under sixteen years of age. Rem.Supp. 1943, § 6908. Upon advice of counsel appointed by the court, he entered a plea of guilty on January 4, 1949.

Under authority of Rem.Rev.Stat. (Sup.) § 10249, 5a and 5b, the court suspended imposing sentence and entered the following order of January 14, 1949:

'* * * The defendant having made application to the Court for probation and defendant being eligible under the law to be granted probation, and the Court being fully advised in the premises, it is therefore,

'Ordered that the imposition of sentence against the defendant herein be, and the same is hereby suspended and deferred for a period of Five years, * * * from date upon the following terms and conditions, to-wit:

'That the defendant follow implicitly the instructions of the Board of Prison Terms and Paroles and the rules and regulations promulgated by said Board for the conduct of the defendant during the term of his probation herein.

'That the defendant deposit into the Registry of the Court on the 1st & 15th day of each month, the sum of $15.00, and a like amount on the first & fifteenth of each month thereafter until the further order of the Court, said sums to be deposited to the credit of Mrs. Stella Farmer for the benefit of Patrick Farmer, the first payment to be made on Feb. 1st, 1949.

'It is further ordered that this order shall remain in full force and effect until the further order of the court or until the same is revoked, modified or changed, or the period of probation is terminated by an order of the court, as provided by law.'

The record discloses that defendant paid $275 between February 1, 1949, and August 10, 1950. During that period, $555 had accrued in accordance with the order of January 14, 1949.

Defendant's wife had sued for divorce in 1945. After default, an interlocutory order of divorce was entered which was made final June 26, 1946. The wife was given custody of the three children and title to a house and furnishings. The decree contained no provision for alimony or support money for the children.

On August 10, 1950, defendant filed a 'Petition to Revoke, Modify or Change Order of Deferment of Sentence.' The petition alleged: (1) that defendant and his wife had agreed that if he would allow his wife to obtain the custody of the children, and title to the house and furnishings, and further, if defendant would refrain from contesting the divorce action, then his wife would make no claim upon him for alimony or support money for the children; (2) that this agreement being performed by him, the wife had since sold the house for $6,000, had remarried and taken the child Patrick to California where they now reside; that the child is in a good home and well provided for; (3) that defendant was not guilty of the crime charged because he had been supporting the child; that, because he was without funds, an attorney was appointed for him; that defendant told the attorney about the cancelled money orders and bank drafts which showed he had not failed to support the child, but that 'said attorney advised him to plead guilty,' which he did; that defendant is delinquent in his payments because he cannot obtain work in this state and the parole board will not allow him to go elsewhere, where he may obtain work.

Defendant's petition contains no prayer for relief unless it be found in the last sentence thereof which reads: 'That the Court was without jurisdiction to enter the aforesaid order of payment of money to support said Patrick and the same is contrary to the oral agreement made between said defendant and his wife, and said order should be revoked.' (Italics ours.)

The trial court heard the matter of affidavits and on the record in the divorce action. The petition was denied November 13, 1950.

Defendant's sole assignment of error is that 'the court erred in refusing to revoke the Order of Deferment.'

Neither in his petition nor in his brief has defendant been precise in setting forth the exact relief he seeks. Defendant does not ask that, after the revocation of the order of January 14, 1949, he be sentenced upon his plea of guilty to the information, nor does he urge that he be permitted to change his plea of guilty to a plea of not guilty. His chief concern seems to be for relief from the monthly payments for the support of his son made mandatory as a condition of his probation.

We are confronted at the outset with the fact that defendant, represented by appointed counsel, pleaded guilty and made application to the court for probation. Hence, we consider first the question of defendant's right, in view of the record before us, to petition the trial court to modify the terms of his probation after a plea of guilty, and his right to appeal from an order denying the petition.

There is a distinction, under our statutes, between a suspension of sentence where it has been pronounced but execution thereof suspended, and a situation where the pronouncement of sentence is suspended or deferred. It is the latter situation which confronts us he...