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AGO 1952 No. 416 - October 09, 1952
AGO Opinion Header Image
Smith Troy | 1941-1952 | Attorney General of Washington
ELECTORS ‑- FORFEITURE OF ELECTIVE FRANCHISE BY CONVICTION OF INFAMOUS CRIME ‑- MEANING OF "CONVICTION" AS TO PAROLEE.

A person whose guilt of an infamous crime has been determined by a plea or verdict of guilty and who has been placed on probation therefor pursuant to RCW 9.95.200, et seq., has been "convicted" within the meaning and intent of § 3052 Code of 1881 (Rem. Rev. Stat. § 5112) and is not entitled to vote until such time as he has been discharged from probation and the information or indictment against him has been dismissed as provided by RCW 9.95.240.

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                                                                 October 9, 1952 

Honorable John J. O'Connell
Prosecuting Attorney
Pierce CountyTacoma, Washington                                                                                                              Cite as: AGO 51-53 No. 416

 Attention:  Leonard A. Sawyer

 Dear Sir:

             By letter of September 22, 1952, you ask our opinion as to whether a person whose sentence for an infamous crime has been "deferred" by virtue of his having been granted probation pursuant to the provisions of RCW 9.95.200, et seq., has been "convicted" so as to lose his right to vote during the period of such deferment of sentence.

             It is our conclusion that a person whose guilt of an infamous crime has been determined by a plea or verdict of guilty and who has been placed on probation therefor pursuant to RCW 9.95.200,et seq., has been "convicted" within the meaning and intent of § 3052, Code of 1881 (Rem. Rev. Stat. § 5112), and is not entitled to vote until such time as he has been discharged from probation and the information or indictment against him has been dismissed, as provided by RCW 9.95.240.

              [[Orig. Op. Page 2]]

                                                                     ANALYSIS

             Article VI, § 3 of the Washington State Constitution is as follows:

             "All idiots, insane persons, and personsconvicted of infamous crime unless restored to their civil rights, are excluded from the elective franchise."  (Emphasis supplied.)

             A statutory provision similar in terms to the constitutional provision, codified as § 3052 of the Code of 1881 (Rem. Rev. Stat. § 5112; omitted from the Revised Code of Washington) provides that:

             "No idiot, or insane person, or personsconvicted of an infamous crime, shall be entitled to the privilege of an elector."  (Emphasis supplied.)

             It is to be noted that these two provisions were discussed in the case of State v. Collins, 69 Wash. 268, 124 Pac. 903.  In referring to the right to exercise the elective franchise which is declared forfeited under the above quoted constitutional and statutory provisions, the court by way of dictum there said:

             "* * *  This is not a civil right, but a political right.  * * *"

            In approaching the question of the meaning of the word "conviction" as used in the statute involved in the case ofState ex rel. Brown v. Superior Court, 79 Wash. 570, 140 Pac. 555, our supreme court said:

             "* * *  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.  * * *"

              [[Orig. Op. Page 3]]

            In the Brown case the court held that under the particular statute there considered, "conviction" meant a determination of guilt prior to the imposition of sentence.  In its enactment of the provisions of RCW 9.95.200, et seq., relating to probation, the legislature has used the term "conviction" in the same sense.  Consistently throughout these provisions reference is made to "conviction by plea or verdict of guilty * * *."  RCW 9.95.200 provides in part that:

             "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, * * *.  In case there are no regularly employed parole officers working under the supervision of the board of prison terms and paroles in the county wherein the defendant isconvicted by plea or verdict of guilty, the court may refer the matter to the prosecuting attorney or sheriff of the county for investigation and report."  (Emphasis supplied)

             RCW 9.95.240 provides that:

             "Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who has 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 of which he wasconvicted be permitted in the discretion of the courtto 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 was convicted.  * * *"  (Emphasis supplied.)

              [[Orig. Op. Page 4]]

            It is clear that the legislature is here using the word "conviction" in the sense of a determination of guilt by a plea or verdict separate and apart from and prior to the imposition of sentence.  This, we believe, is a legislative interpretation of the word "conviction" as used in Article VI, § 3 of the State Constitution, and particularly of that term as used in the prior legislative enactment as set forth in Rem. Rev. Stat. § 5112.  Considering Rem. Rev. Stat. § 5112 and the subsequently enacted provisions of RCW 9.95.200, et seq. together, it appears to have been the legislative intent that a "conviction" which forfeits the right to exercise the elective franchise is a determination of guilt by plea or verdict and does not require the rendition of a formal judgment or the imposition of sentence.

             It is our opinion therefore that a person whose guilt of an infamous crime has been established by plea or verdict and who is placed on probation as a result thereof has been "convicted" within the meaning of Rem. Rev. Stat. § 5112 and is not entitled to vote until he has been discharged from probation and the information or indictment against him has been dismissed pursuant to RCW 9.95.240.

 Very truly yours,
SMITH TROY
Attorney General 

FRED L. HARLOCKER
Assistant Attorney General

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