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AGO 1953 No. 100 - July 24, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington


Where a person is convicted of a gross misdemeanor and sentenced while serving a sentence for a prior gross misdemeanor and the court fails to specify in pronouncing the sentence whether or not the sentences shall run concurrently, the second sentence shall run concurrently with the balance remaining to be served on the first.

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                                                                    July 24, 1953

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Court House
Spokane 1, Washington                                                                                                              Cite as:  AGO 53-55 No. 100

Attention:  Mr. John J. Lally, Chief Deputy

Dear Sir:

            We have your letter in which you request the opinion of this office concerning the running of sentences under the following set of facts:

            "John Doe is sentenced to the county jail on June 1st, 1953 for a period of 30 days, the offense involved being a gross misdemeanor.  Thereafter on June 10th, 1953, John Doe is sentenced to the same county jail for a different gross misdemeanor for a period of 30 days.  At the time of the imposition of the second sentence to the county jail, John Doe was already in confinement since June 1st, serving out the sentence imposed in the first mentioned case.  Under such a set of facts, does John Doe start to serve his second sentence for 30 days upon the expiration of the first sentence, or on the other hand, would John Doe have completed both of  [[Orig. Op. Page 2]] these sentences 40 days after the imposition of the initial sentence?  In other words, does the second sentence in part run concurrently with the first, or is it a cumulative sentence?  In the instant cases, no provision was made in the commitments as to whether or not the sentences should run concurrently or consecutively."

            It is our conclusion that the two sentences run in part concurrently, and that John Doe is entitled to release forty days after the commencement of his original sentence.


            The general rule applicable to this set of facts is stated in 15 Am. Jur. 124, Criminal Law, section 465, as follows:

            "* * * If the defendant is already in execution on a former sentence and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule.  * * *"

            Accord:  24 C.J.S. 1236, Criminal Law, section 1996; Re McDonald, 178 Wis. 167, 189 N.W. 1029, 70 A.L.R. 1514; People v. Graydon, 329 Ill. 398, 160 N.E. 748;People v. Ashworth, 47 N.Y.S. (2d) 551;People v. McDonald, 106 N.Y.S. (2d) 318; People v. Anderson (Ill.) 95 N.E. (2d) 366; People v. Henry, (Cal.) 195 P. (2d) 478, Ex Parte Radovich (Cal.) 142 P. (2d) 325; Ex Parte Taube (Cal.) 177 P. (2d) 478,Ex Parte Radovich (Cal.) 142 P. (2d) 325;Ex Parte Taube (Cal.) 177 P. (2d) 478, Ex Parte Radovich (Cal.) 142 P. (2d) 325; Ex Parte Taube (Cal.) 177 P. (2d) 329; Finley v. State (S.C.) 64 S.E. (2d) 881, and Ex Parte Whiteside (Tex.) 150 S.W. (2d) 1022.

            RCW 9.92.080 provides as follows:

            "Whenever a person is convicted of two or more offenses before sentence has been pronounced for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction shall commence at the termination of the first or other prior term or terms of imprisonment to which he is sentenced; and whenever a person while under sentence  [[Orig. Op. Page 3]] of felony commits another felony and is sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms:  Provided, That whenever a person is convicted of two or more offenses set forth as separate counts in one indictment or information the court may, in pronouncing sentence, provide that sentences therefor shall run concurrently."

            Observe that this statute applies to but three situations, as follows:

            (1) Where a person is convicted of two or more offenses before sentence has been pronounced for either;

            (2) Where a personwhile under sentence of felony commits another felony;

            (3) Where a person is convicted of two or more offenses set forth as separate counts in one indictment or information.

            InIn re Sanford, 10 Wn. (2d) 686, our supreme court was required to construe the cited statute.  That case involved a person convicted of separate felonies set forth in separate informations who was convicted of both before sentence was pronounced on either.  The superior court failed to specify whether or not the sentences were to run concurrently.  The court held that the case fell within the terms of RRS 2285 (RCW 9.92.080) and that consecutive sentences were mandatory.  We are aware that the court in the Sanford case stated that this statute governs sentences for misdemeanors as well as for felonies.  This is true, provided that the facts are such as to make the case fall within situations (1) or (3)supra.  The rule that statutes in derogation of common law are to be strictly construed is so well established as to require no citation of authority.

             [[Orig. Op. Page 4]]

            We conclude that in the factual situation you presented, the term of the second or subsequent sentence is concurrent with the unserved balance of the original term.

Very truly yours,

Attorney General

Assistant Attorney General

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