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AGO 1956 No. 246 - April 18, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

MINIMUM SENTENCE ‑- ACCESSORIES

An accessory to a felony 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 is subject to the mandatory minimum sentence under RCW 9.95.040 (1955 Supp.).

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                                                                   April 18, 1956

 Honorable Charles O. Carroll
Prosecuting Attorney of King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 246

 Attention:  !ttMr. F. A. Walterskirchen
           Chief Criminal Deputy

Dear Sir: 

            We have received your letter of March 26, 1956, in which you have asked a question which we paraphrase as follows:

             Is the Board of Prison Terms and Paroles, in fixing the duration of confinement of an accessory to the crime of robbery committed with a deadly weapon, limited by the mandatory minimum terms established by RCW 9.95.040 (1955 Supp.)?

             We answer your question in the affirmative, with the qualification that the statutory minimum terms are only mandatory if (1) the accessory was armed with a deadly weapon at the time of the commission of the offense charged, of (2) if he was armed with a concealed deadly weapon at the time of his arrest.

              [[Orig. Op. Page 2]]

                                                                    ANALYSIS

             RCW 9.01.060, relating to the punishment of accessories, reads as follows:

             "Every accessory to a felony may be indicted, tried, and convicted either in the county where he became an accessory, or where the principal felony was committed; and whether the principal offender has or has not been convicted, or is or is not amendable to justice, or has been pardoned or otherwise discharged after conviction; and, except where a different punishment is specially provided by law, such accessory shall be punished by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both."

             RCW 9.95.040 (1955 Supp.), relating to the power of the Board of Prison Terms and Paroles to fix the duration of confinement of prisoners, reads in pertinent part as follows:

             ". . .  The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which he was convicted or the maximum fixed by the court where the law does not provide for a maximum term.

             "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:

              [[Orig. Op. Page 3]]

            "(1) For a person not previously convicted of a felony but armed with a deadly weapon either 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 five years.

             "(2) For a person previously convicted of a felony either in this state of 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.)

             The statutory limitations established by RCW 9.95.040 (1955 Supp.) are applicable, notwithstanding the fact that RCW 9.01.060 fixes the punishment of an accessory by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both.

             You are advised that RCW 9.95.040 (1955 Supp.) relates to the duration of confinement and not to the sentence fixed by law or by the court.  Therefore, the Board of Prison Terms and Paroles, provided the accessory falls within the limitations of RCW 9.95.040 (1955 Supp.), shall apply the mandatory provisions within the framework of the maximum sentence set by the court.

 Very truly yours,
 DON EASTVOLD
Attorney General 

JOHN J. QUINE
Assistant Attorney General

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