State v. Fogg, No. A-7285.

CourtCourt of Appeals of Alaska
Writing for the CourtCOATS, Chief.
Citation995 P.2d 675
PartiesSTATE of Alaska, Appellant, v. Torin C. FOGG, Appellee.
Decision Date04 February 2000
Docket NumberNo. A-7285.

995 P.2d 675

STATE of Alaska, Appellant,
v.
Torin C. FOGG, Appellee

No. A-7285.

Court of Appeals of Alaska.

February 4, 2000.


Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellant.

Kirsten Swanson, Assistant Public Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage, for appellee.

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

COATS, Chief Judge.

Torin Fogg pled guilty to driving with a suspended license in violation of AS 28.15.291. In sentencing Fogg, the magistrate allowed Fogg to convert his community work service into a fine at the rate of $6.25 per hour, despite a provision in AS 28.15.291 requiring 80 hours of mandatory community work service. We conclude this sentence contravenes AS 28.15.291 and is therefore illegal. We vacate the sentence and remand for resentencing.

Fogg was cited for driving with a suspended license in violation of AS 28.15.291. He pled guilty to this charge as part of his plea agreement with the state. The prosecutor and Fogg told the court that they had agreed that Fogg's sentence would be the minimum sentence permitted by AS 28.15.291: "10 days jail with 10 days suspended, 90 days [license] revocation, 80 hours community work service."

The magistrate accepted the plea. Then he stated that if Fogg did not complete his 80 hours of community service, he would allow Fogg to convert the remaining community service hours to a fine at the rate of $6.25 per hour.1 The state objected, arguing that the sentence was illegal. The magistrate rejected this argument and issued an order which allowed Fogg to pay a fine of $6.25 an

995 P.2d 676
hour for each hour of community work service which Fogg did not complete

The issue in this case involves one of statutory interpretation.2 The statute in question is AS 28.15.291—driving while license canceled, suspended, revoked, or in violation of a limitation. Subsection (b)(1)(A) of this statute states: "Upon conviction under (a) of this section, the court shall impose a minimum sentence of imprisonment if the person has not been previously convicted, of not less than 10 days with 10 days suspended, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service."3 Subsection (b)(3)(A) further states that "the court may not suspend execution of sentence or grant probation except on condition that the person serve a minimum term of imprisonment and perform required community work service as provided in (1) of this subsection."4

Both the state and Fogg rely on the fact that other Alaska statutes specifically allow courts to convert one form of punishment for another. For example, AS 12.55.055(d) allows a court to "offer a defendant convicted of an offense the option of performing community work in lieu of a sentence of imprisonment." Alaska Statute 12.55.055(c) allows a court to "offer a defendant convicted of an offense the option of performing community work in lieu of a fine."5 Fogg argues that these provisions establish that courts have the authority to substitute various forms of punishment for others. The state argues the opposite by noting, correctly, that while certain Alaska statutes allow for community work instead of a fine, and community work instead of...

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1 practice notes
  • Swartz v. Municipality Anchorage, Court of Appeals No. A-12810
    • United States
    • Court of Appeals of Alaska
    • February 15, 2019
    ...eliminated the mandatory community work service hours for this offense. See AO 2016-83(s) § 6; SLA 2016, ch. 36, § 105.3 State v. Fogg , 995 P.2d 675 (Alaska App. 2000).4 SLA 2016, ch. 36, § 76.5 Subsection (h) provides:(h) If a court orders community work as part of the defendant’s sentenc......
1 cases
  • Swartz v. Municipality Anchorage, Court of Appeals No. A-12810
    • United States
    • Court of Appeals of Alaska
    • February 15, 2019
    ...eliminated the mandatory community work service hours for this offense. See AO 2016-83(s) § 6; SLA 2016, ch. 36, § 105.3 State v. Fogg , 995 P.2d 675 (Alaska App. 2000).4 SLA 2016, ch. 36, § 76.5 Subsection (h) provides:(h) If a court orders community work as part of the defendant’s sentenc......

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