State v. Monday, 43636

• Decision Date: 02 October 1975
• Docket Number: No. 43636,43636
• Citation: 85 Wn.2d 906,540 P.2d 416
• Parties: STATE of Washington, Petitioner, v. Ernest Wayne MONDAY, Respondent.
• Court: Washington Supreme Court

Page 906

85 Wn.2d 906

540 P.2d 416

STATE of Washington, Petitioner, v. Ernest Wayne MONDAY, Respondent.

No. 43636.

Supreme Court of Washington, En Banc.

Oct. 2, 1975.

Curtis M. Janhunen, Pros. Atty., David Foscue, Chief Deputy Pros. Atty., Grays Harbor County, Montesano, for petitioner.

John M. Wolfe, Aberdeen, for respondent.

FINLEY, Associate Justice.

This appeal arises from an order of the superior court which: (1) revoked defendant's probation and suspended sentence; and (2) imposed the original jail sentence prescribed for defendant's conviction of negligent homicide. The Court of Appeals reversed the superior court on the grounds that after the original term of sentence prescribed for a convicted defendant has elapsed, a superior court loses jurisdiction to thereafter revoke the suspended sentence and impose the original sentence. We affirm the Court of Appeals.

The facts and undisputed and, insofar as pertinent, they are as follows: In September, 1971, defendant Monday was sentenced to One year in jail for negligent homicide. However, the execution of the sentence was suspended for Two years on the condition that defendant serve eight months in jail and comply with various probation conditions. Defendant served his eight months in jail. Thereafter, in June, 1973, the suspended sentence was revoked for violation of the conditions of probation, and defendant Monday was ordered to serve the one year jail term without credit for the eight months jail time previously served.

There are essentially two statutory schemes under which a trial court may prescribe a suspended sentence for a defendant convicted of the commission of a crime: (1) RCW 9.92.060--.064, which has been termed the Suspended Sentence Act; and (2) RCW 9.95.210, which has been termed the Probation Act. See State v. Davis, 56 Wash.2d 729, 355 P.2d 344 (1960). The Court of Appeals correctly determined that the superior court was operating under RCW 9.95.210 (the Probation Act) when it sentenced defendant Monday. Thus, the sole question for our determination is whether a sentence may be suspended and a defendant placed on probation under RCW 9.95.210 for a period of time longer than the length of sentence Actually imposed?

RCW 9.95.210 provides in pertinent part:

The court in granting probation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, Not exceeding the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.

(Italics ours.)

The difficulty in the instant case stems from the fact that the crime for which defendant was convicted--negligent homicide--is punishable by ten years imprisonment in a state penitentiary, or one year imprisonment in the county jail, or a fine of $1,000 or by both a fine and imprisonment. See RCW 46.61.520(2). Thus, the above-italicized portion of RCW 9.95.210 could be construed (a) to allow suspension of sentence and imposition of probation for the maximum term that it would be Possible for a judge to impose, I.e., ten years in this case, or alternatively, it could be construed (b) to allow suspension of sentence and imposition of probation for the term of sentence actually imposed by the trial court, I.e., one year in this case.

Essentially two factors convince us that, in enacting RCW 9.95.210, the legislature intended to allow the sentence to be suspended and probation imposed only for the term of the sentence actually imposed by the trial judge. First, if the trial judge had sentenced the defendant under the Suspended Sentence Act, I.e., RCW 9.92.060 instead of under the Probation Act, I.e., RCW 9.95.210, it is clear that the sentence could be suspended and probation imposed only for the period of time of the sentence which was actually imposed and thereupon suspended. This is made clear by RCW 9.92.064 which provides:

In the case of a person granted a suspended sentence under the provisions of RCW 9.92.060, the court shall establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence.

We see no compelling reason to ascribe to RCW 9.95.210 a meaning different from that in RCW 9.92.064. To the contrary, the two statutes have the similar purpose of providing, where appropriate, rehabilitative treatment and supervision of a convicted defendant without the necessity of incarceration. Since the two provisions have a similar purpose, it seems logical to us that the legislature intended to place similar constrictions upon the length of time that a convicted person may properly be held subject to supervision.

Second, the State's construction of RCW 9.95.210 would require us to judicially redraft the statute so that it would allow suspension of sentence for 'the maximum term of sentence Possible.' As the Court of Appeals observed, such a construction would make the Washington statute conform to a California statute which provides in...