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AGO 1959 No. 50 - July 01, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington


(1) A deferred or suspended sentence is not a prior conviction when it has been dismissed under RCW 9.95.240 -AGO 57-58 No. 106 [[to Board of Prison Terms and Paroles on August 2, 1957]];

(2) A deferred or suspended sentence is a prior conviction if the same has not been revoked or dismissed.

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

                                                                     July 1, 1959

Honorable Harris G. Hunter, Chairman
Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington                                                                                        Cite as:  AGO 59-60 No. 50

Attention:  James D. Skaggs, Member

Dear Sir:

            In your letter previously acknowledged, you have requested the opinion of this office on questions which we have paraphrased as follows:

            1.  Whether a felony conviction, which sentence thereon was deferred or suspended and later dismissed in accordance with the provisions of RCW 9.95.240, is a prior conviction for the purpose of setting a mandatory minimum sentence under RCW 9.95.040 (2); and

            2.  Whether a felony conviction, which sentence thereon was deferred or suspended and never revoked or dismissed, is a prior conviction for the purpose of setting a mandatory minimum sentence under RCW 9.95.040 (2).

            We must answer your first question in the negative and refer you to AGO 57-58 No. 106 [[to Board of Prison Terms and Paroles on August 2, 1957]], a copy of which is attached, for an analysis of this problem.  We answer your second question in the affirmative after noting two distinct problems involved therein.

             [[Orig. Op. Page 2]]


            In answering your second question, we should first differentiate between a deferred and a suspended sentence.  In this regard, we use the term "suspended sentence" in the following analysis to indicate that situation where the court has adjudged the accused guilty of the crime, passed proper sentence upon him, but arrests the execution or operation of the sentence upon certain specified conditions.  A "deferred sentence" occurs when the court adjudges the accused guilty of the crime but stays or "defers" imposition of sentence and places that person on probation.  With this distinction in mind, we will proceed to analyze each of these situations.

            Your question involves an interpretation of RCW 9.95.040, which provides so far as material here:

            "The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

            ". . .

            "(2) For a personpreviously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, or a concealed deadly weapon at the time of his arrest, the duration of confinement shall not be fixed at less than seven and one half years."  (Emphasis supplied.)

            Accordingly, it is felt that your question resolves itself to the issue of when is a person "previously convicted of a felony."


            InState v. Liliopoulos, 165 Wash. 197, 5 P. (2d) 319 (1931), the Supreme Court of the State of Washington held, for purposes of appeal, that a suspended sentence was a final adjudication.  It would therefore seem that the fact that the trial court has arrested the operation of a sentence already imposed does not affect the validity or finality of said conviction and sentence.  Such a conclusion would then tend to support a proposition that such a "conviction" would also be final as a prior conviction for the purpose of imposing a mandatory minimum sentence on a subsequent conviction.

             [[Orig. Op. Page 3]]

            Although there is substantial authority for the position that the term "conviction" as used in statutes which, in effect, increase the length of punishment for subsequent convictions, requires not only a "conviction" in the accepted sense but also an operative sentence thereon, such reasoning would not seem to be persuasive.  See 5 A.L.R. (2d) 1077.  Many jurisdictions which have considered this problem, and it is submitted the majority, although the annotation does not take this position, have arrived at a contrary view and have concluded that the fact that a court has exercised its discretion and sought to rehabilitate an individual without recourse to incarceration does not alter the ultimate fact that such a person has sustained a previous conviction of a felony.  Winn v. Commonwealth, Ky. Ct. App., 303 S.W. (2d) 275 (1957); State v. Olson, 200 Iowa 660, 204 N.W. 278 (1925); 5 A.L.R. (2d) 1077.

            Seemingly, those cases cited at the end of this opinion in regard to deferred sentences should also be included in this reference, as they would appear to be an extension of the theory of the above cases.

            Although the supreme court of this state has not specifically ruled on this issue, there are cases which tend to support the above reasoning.  In the case ofState v. Edelstein, 146 Wash. 221, 262 Pac. 622 (1927), the court was presented with an analogous problem; whether a prior felony conviction, from which sentence the defendant had been pardoned, was still a prior conviction within the intent of the habitual criminal statute.  The court there concluded that such was a prior conviction and that the exercise of executive clemency did not expiate such a conviction for all purposes.  See alsoState v. Cullen, 14 Wn. (2d) 105, 127 P. (2d) 257 (1942).  Such an interpretation, applied to the instant problem would indicate that the trial court's exercise of discretion in choosing to arrest the execution of sentence would not affect its substance as a previous conviction.

            This reasoning receives further support in the case of State ex rel. Zbinden v. Superior Court, 135 Wash. 458, 238 Pac. 9, 240 Pac. 565 (1925).  In that case the relator had been convicted of a felony and his sentence thereon had been suspended.  He was subsequently charged and convicted of another felony.  When the relator requested that he be placed on probation from the latter conviction, the trial court held that under the applicable statute the relator was not entitled to such clemency and refused to exercise its discretion in the matter.  On mandamus to force the trial court to exercise its discretion, the supreme court was required to construe the applicable statute (Rem. Comp. Stat. § 2280, which is presently RCW 9.92.060, with the pertinent limitation amended out by § 1, chapter 227, Laws of 1957), which then read:

             [[Orig. Op. Page 4]]

            "Whenever any personnever before convicted of a felony or gross misdemeanor shall be convicted . . . the court may in its discretion . . . direct that such sentence be stayed . . ." (Emphasis supplied.)

            The court held, without discussing the point directly here in question, that the relator had been previously convicted of a felony and was therefore not entitled to the benefits of the statute.  The decision does, however, necessitate a conclusion that a conviction, where sentence has been suspended, is a prior conviction within the meaning of the suspended sentence statute.

            Although this case was concerned with a benefit which might be granted to a defendant, and not concerned with a law which effectively increased a defendant's punishment, it is submitted that the reasoning equally applies and that a conviction where sentence has been suspended and not revoked is still a previous conviction within the intent of the statute.

            It is therefore the opinion of this office that a suspension of sentence would not distinguish such a conviction so as to render inoperative the provisions of RCW 9.95.040.


            The "deferred sentence" situation must be considered separately as it presents a very important technical variance from a suspended sentence.  Here, the trial court chooses not to impose a sentence upon a defendant but to immediately place him on probation.  Accordingly, it must be decided whether a "conviction" occurs prior to the imposition of sentence for the purposes of the mandatory minimum sentence statute.

            We might first consider what actually occurs when a person is granted a deferred sentence.  The court normally proceeds as with any other criminal prosecution up to the point of sentencing.  However, the court, instead of pronouncing sentence, only formally declares and adjudges the accused guilty of the crime, and thereupon stays the imposition of sentence upon conditions set forth.  In practice, then, the court does formally find the defendant guilty of the crime.  Does this then constitute the "conviction" contemplated by the statute in question?

            At the outset, we are met with a number of Washington decisions which arguably indicate a negative conclusion to this question.  InState v. Farmer,  [[Orig. Op. Page 5]] 39 Wn. (2d) 675, 237 P. (2d) 734 (1951), it was held that no appeal would lie from a deferred sentence; this case being in accord with an earlier decision on the same point.  SeeState v. Siglea, 196 Wash. 283, 82 P. (2d) 583 (1938).  From these decisions it is evident that a conviction where sentence is not imposed is not final for purposes of appeal.

            InState v. Burnett, 144 Wash. 598, 602, 258 Pac. 484 (1927), our high court said, in construing the intent of the habitual criminal statute:

            ". . . that word [convicted], as used in the statute, manifestly meaning a finding or plea of guilty and an enforcible [[enforceable]]judgment rendered thereon in a court of competent jurisdiction."

            InState v. Siglea, supra, at p. 285, the court said, in concluding that no appeal could be taken from a deferred sentence:

            "As a prerequisite to an appeal in a criminal case, there must be a final judgment terminating the prosecution of the accused and disposing of all matters submitted to the court for its consideration and determination. . . .

            "The term 'judgment' has been defined as the determination or sentence of the law, pronounced by a competent judge or court, . . . affirming that, upon matters submitted for its decision, a legal duty or liability does or does not exist. . . .

            "In a criminal case, it is the sentence that constitutes the judgment against the accused, and, hence, there can be no judgment against him until sentence is pronounced. . . ."

            This statement was further amplified in State v. King, 18 Wn. (2d) 747, 753, 140 P. (2d) 283 (1943), wherein it was said:

            "In its technical legal signification 'sentence' is ordinarily synonymous with 'judgment' and denotes the action of a court of criminal jurisdictionformally declaring to the accused the legal consequences of the guilt which he has confessed  [[Orig. Op. Page 6]] or of which he has been convicted."  (Emphasis supplied.)

            When these cases are read together, a strong argument can be made that our court has in fact concluded and held that a final judgment is a requisite of a "conviction" and inherent in a final judgment is the imposition of sentence by the court.  However, it should be noted that the statement in the Burnett case was only dicta, as such a conclusion was not required for the decision of that case.  There the court was concerned only with what had to be alleged in the information, in order to charge a prior conviction.  TheSiglea case is also explainable, in that the court was only concerned with what type of judgment was appealable under the rules applicable at that time.

            The statement above quoted from the King case, though ostensibly supporting the prior statements, can be construed favorably to the conclusion expressed in this opinion.  There, as evidenced by the portion which is above underlined, the court actually points out that the judgment and sentence is merely the declaration of the legal consequence of guilt of which the person had previously beenconvicted.  SeePeople v. Funk, 321 Mich. 617, 33 N.W. (2d) 95 (1948).

            There are a number of statutes which lend support to the conclusion that a conviction technically occurs prior to the imposition of sentence.  When these statutes are considered in light of the rule of construction that statutes inpari materia are to be construed together, they become entitled to substantial consideration in the resolution of this issue.  As was said inState v. Houck, 32 Wn. (2d) 681, 684, 203 P. (2d) 693 (1949):

            "Statutes inpari materia must be construed together.  Statutes inpari materia are those which relate to the same person or thing . . . and in construing a statute, or statutes, all acts relating to the same subject matter or having the same purpose, should be read in connection therewith as together constituting one law.  The object of the rule is to ascertain and carry into effect the intent of the legislature, and it proceeds upon the supposition that the several statutes having to do with related subject matters were governed by one spirit or policy, and were intended to be consistent and harmonious in their several parts and provisions."

             [[Orig. Op. Page 7]]

            RCW 10.01.050 provides:

            "No person charged with any offense against the law shall be punished for such offense, unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the case and of the person."  (Emphasis supplied.)

            RCW 10.01.060 also provides:

            "No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: . . ."

            From a reading of these statutes, it is evident that the legislature in using the term "convicted" contemplated that point in a prosecution where the court formally declares the accused guilty of the crime charged, and did not contemplate that the term was to include the imposition of sentence by the court.  This point is aptly made in the probation statute, RCW 9.95.200, which begins:

            "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, . . ."

            See also RCW 10.64.020.  Therefore these statutes would seem to furnish us with a sound indication that the legislature in using the term "conviction" in RCW 9.95.040, intended the term to mean a finding or adjudging of guilt and not the passing of sentence.

            It might be argued, however, that criminal statutes must be construed strictly against the state and in favor of an accused, State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951), and that the above interpretation would not be a strict construction, but as was said in the case ofState v. Rinkes, 49 Wn. (2d) 664, 667, 306 P. (2d) 205 (1957):

            "In construing penal statutes, we are committed to the following rules:

            "A court may not place a narrow, literal, and technical construction upon a part only of a statute, and ignore other relevant parts.  In the process of construction, the intention of the lawmakers must be extracted from a consideration of all of the provisions  [[Orig. Op. Page 8]] of the act.  In re Cress, 13 Wn. (2d) 7, 15, 123 P. (2d) 767 (1942).  Statutes are to be construed according to their evident intent and purpose. . . .

            "Where an act has a doubtful or ambiguous meaning, it is the duty of the court to adopt a construction that is reasonably liberal, in furtherance of the obvious or manifest purpose of the legislature. . . .

            "Penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted.  But they are not to be construed so strictly that they would be defeated by a forced or over-strict construction. . . .

            "Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes.  It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature. . . ."

            Therefore, even assuming that the statute is ambiguous and subject to construction by the court (seeState v. Houck, supra; Parkhurst v. Everett, 51 Wn. (2d) 292, 318 P. (2d) 327 (1957)), the intent of the legislature should govern,Lynch V. Dept. of Labor & Industries, 19 Wn. (2d) 802, 145 P. (2d) 265 (1944); Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948), and an absurd or unreasonable construction will not be placed upon such a statute.

            In applying these canons of construction, it would appear that when the legislature used the term "previously convicted," it intended that term to mean that point in a prosecution where the court formally adjudges the accused guilty of the crime.  The theory underlying this type of legislation is most compatible with this interpretation.  The legislature, in passing the statute, would seem to have been more concerned with the past conduct of the individual, than the possible punishment which he had received for that conduct.  It would indeed seem absurd that the legislature intended to exclude a person who had received a deferred sentence, merely because a trial court had exercised its discretion on a previous occasion.

            As was said inPeople v. Funk, 321 Mich. 617, 621, 33 N.W. (2d) 95 (1948), in deciding whether a deferred sentence was a prior conviction within the intent of their habitual criminal statute:

             [[Orig. Op. Page 9]]

            ". . . The statute does not make imposition of sentence upon the previous conviction a prerequisite to the enhancement of punishment upon the fourth conviction.  The conviction is a finding of guilt.  Sentence is not an element of the conviction but rather a declaration of its consequences. . . ."

            Such a statement would be equally appropriate in regard to our mandatory minimum sentence statute.

            Although the cases which have considered this point are all directed toward habitual criminal statutes, the reasoning is equally applicable to RCW 9.95.040, and they are the more persuasive authority.  SeeState v. O'Dell, 71 Idaho 64, 225 P. (2d) 1020; Ex parte Farr, 87 Okla. Crim. 411, 198 P. (2d) 748 (1948); People v. Rave, 364 Ill. 72, 3. N.E. (2d) 972 (1936).

            The Supreme Court of the State of Washington would seem to have anticipated this issue when it said in the case of State ex rel. Brown v. Superior Court, 79 Wash. 570, 573, 140 Pac. 555 (1914):

            ". . . Numerous cases have been cited as to the proper meaning to be given the word 'conviction' in criminal statutes; whether it means the finding of guilty by either court or jury, or the status of a defendant after the finding of guilt and the imposition of judgment and sentence.  It is enough to say that sometimes it means the one thing and sometimes it means the other, and we must look to the context to ascertain the real meaning to be given in the particular case. . . ."

            Accordingly, in view of the foregoing arguments, it is the opinion of this office that the term "previously convicted" as used in RCW 9.95.040 encompasses those cases where the sentence was deferred and never revoked or dismissed.

            It is hoped that this opinion will be of some assistance to you.

Very truly yours,
Attorney General

Assistant Attorney General

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