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AGO 1962 No. 187 - December 27, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COURTS ‑- CRIMES ‑- FELONY CONVICTION ‑- PROBATION WHERE EXECUTION OF SENTENCE SUSPENDED ‑- PAROLE OFFICER.

(1) A court may dismiss a conviction of a felony and discharge a defendant who has been granted probation pursuant to chapter 227, Laws of 1957, where the execution of a sentence had been suspended.

(2) There is no conflict between RCW 9.92.060 and RCW 9.95.200.  The probation procedure (RCW 9.95.200) is available after conviction of any crime and the suspended sentence procedure in RCW 9.92.060 is available whenever any person has been convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under age of 10 or rape.

(3) The provision in RCW 9.92.060 which provides that a probationer shall be placed under the charge of a parole officer who is the duly appointed and acting officer of the institution to which the person is sentenced is mandatory and cannot be ignored.

                                                              - - - - - - - - - - - - -

                                                               December 27, 1962

Honorable Harris G. Hunter
Chairman, Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 187

Dear Sir:

            In your letter previously acknowledged, you have requested the opinion of this office to aid you in instructing your probation officers' staff.  We have paraphrased your questions as follows:

            1. May the courts dismiss a conviction of a felony and discharge a defendant who has been granted probation pursuant to chapter 227, Laws of 1957, where theexecution of sentence has been suspended?

            2. Is there a conflict between the following provisions of § 1, chapter 227, Laws of 1957, (now codified as and hereinafter referred to as RCW 9.92.060) and § 3, chapter 227, Laws of 1957, (now codified as and hereinafter referred to as RCW 9.95.200) which provide respectively:

             [[Orig. Op. Page 2]]

            (a) "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may, in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended . . ."

            (b) "After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, . . ."

            3. Should the courts and the probation officers continue to disregard the last sentence of RCW 9.92.060 which provides that the probationer, "be placed under the charge of a parole officer, who is a duly appointed and acting officer of the institution to which the person is sentenced," as there have been no such officers since 1935?

            We answer your first question in the affirmative and your second and third questions as explained in the analysis.

                                                                     ANALYSIS

            RCW 9.95.200 provides as follows in material part:

            "After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. . . ."

            Section 4, chapter 227, Laws of 1957, (now codified as and hereinafter referred to as RCW 9.95.210) provides as follows in material 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, . . ."

             [[Orig. Op. Page 3]]

            Section 7, chapter 227, Laws of 1957, (now codified as and hereinafter referred to as RCW 9.95.240) provides:

            "Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty, and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.  The probationer shall be informed of this right in his probation papers:  Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed."

            Where the language of a statute is plain, free from ambiguity and devoid of uncertainty, there is no room for construction because the meaning will be discovered from the wording of the statute itself.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).  This rule is applicable here.  RCW 9.95.210 expressly authorizes the court to suspend the execution of sentence in granting a defendant probation.  RCW 9.95.240 expressly authorizes the court to dismiss a conviction and discharge "every defendant" who has fulfilled the conditions of his probation, provided the defendant makes application to the court for dismissal and discharge.  Accordingly, it is our opinion that the court may discharge a defendant and dismiss defendant's conviction where the execution of sentence has been suspended, provided the defendant fulfills the conditions of probation and applies for dismissal and discharge.

            We note that your request concerns the suspending of the execution of sentence in the granting of probation.  Accordingly, we have limited our opinion to the suspending of the execution of sentence wherein  [[Orig. Op. Page 4]] probation was granted.  We have not considered the effect of a suspension of an execution of sentence granted pursuant to RCW 9.92.060.

            Your second question has been answered by the Washington supreme court in the case ofState v. Davis, 56 Wn. (2d) 729, 355 P. (2d) 344 (1960).  In theDavis case the court, in holding that RCW 9.95.200 and RCW 9.92.060 are not conflicting, concluded as follows on page 737 with respect to the present status of the two acts:

            "The present status of the two acts is to leave the probation procedure [RCW 9.95.200] available 'After conviction . . . of any crime,' and the suspended sentence procedure [RCW 9.92.060] available 'Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape. . . .'"

            Finally you ask if the courts and the probation officers should continue to ignore the last sentence of RCW 9.92.060 which provides that the probationer "be placed under the charge of a parole officer, who is the duly appointed and acting officer of the institution to which the person is sentenced," as there have been no such officers since 1935.

            The Washington supreme court in State ex rel. Comer v. Hall, 173 Wash. 188, 22 P. (2d) 295 (1933), stated as follows on page 194 with respect to the necessity of following all the provisions of RCW 9.92.060:

            "The terms of the statute, in the absence of which the court would be without authority to suspend sentence, are mandatory.

            "'The only authority there is in this state for the court to suspend or stay sentence is found in Rem. Comp. Stat., § 2280, which in mandatory terms requires "that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension."  State ex rel. Lundin v. Superior Court, 102 Wash. 600, 174 Pac. 473; State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 Pac. 29, 26 A.L.R. 393;State ex rel. Zbinden v. Superior Court, 135 Wash. 458, 238 Pac. 9, 240 Pac. 565.'  State v. Akers, 156 Wash. 353, 286 Pac. 846.

             [[Orig. Op. Page 5]]

            "In construing the statute (Rem. Rev. Stat., § 2280), we said, inState ex rel. Tingstad v. Starwich, 119 Wash. 561 [564], 206 Pac. 29, 26 A.L.R. 393:

            "'Our construction of this statute is that, if the prisoner be sentenced to serve a term in the county jail, he must, if operation of sentence be suspended, be put in charge of some parole or peace officer, who need not necessarily be connected with that institution; and if he be sentenced to a state penal institution, he must, if operation of sentence be suspended, be put in charge of some parole officer of such state institution . . .'"

            The court concluded as follows on page 196:

            "The court's order suspending sentence upon a second conviction, in view of the plain terms of the statute authorizing suspension of sentence only in case the accused was 'never before convicted,' would be void.  State ex rel. Zbinden v. Superior Court, 135 Wash. 458, 238 Pac. 9, 240 Pac. 565.  The terms of the statute are just as plain respecting the placing of the prisoner in charge of a parole officer.  The court did not, at the time of the suspension of the operation of the sentence, or later, place the relator in charge of any parole officer.  It follows that the order suspending the sentence was absolutely void, because of noncompliance with the statutory provision that sentence shall not be suspended in any case unless the prisoner 'be placed under the charge of a parole officer.'"

            In view of the above, we are of the opinion that the last sentence of RCW 9.92.060, which provides that the probationer "be placed under the charge of a parole officer, who is the duly appointed, and acting officer of the institution to which the person is sentenced" is mandatory and cannot be ignored.

             [[Orig. Op. Page 6]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

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