CRIMES ‑- PROBATION ‑- REVOCATION OF ORDER GRANTING PROBATION
Where a person upon being convicted of a particular crime has been placed on probation with a suspended sentence under RCW 9.95.210, the order thus granting probation may be revoked or modified after the expiration of the period of probation specified therein but before the date upon which the maximum term of the sentence imposed would have been completed if the execution of that sentence had not been deferred.
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December 5, 1975
Honorable Jeffrey C. Sullivan
Yakima County Court House
Yakima, Washington 98901 Cite as: AGLO 1975 No. 93
By recent letter you have directed our attention to the possibility of a conflict between certain advice given by this office to the assistant director of the adult corrections division of the state department of social and health services on September 17, 1975, and a later decision of the state supreme court which was rendered on October 2, 1975, in State v. Monday, 85 Wn.2d 906. Thereupon you have asked for our opinion on a question which we paraphrase as follows:
Where a person upon being convicted of a particular crime has been placed on probation with a suspended sentence under RCW 9.95.210, may the order thus granting probation be revoked or modified after the expiration of the period of probation specified therein but before the date upon which the maximum term of the sentence imposed would have been completed if the execution of that sentence had not been deferred?
We answer this question in the affirmative for the reasons explained in our analysis.
As you have correctly pointed out, both the September 17, 1975, memorandum opinion to which you have referred and State v. Monday, supra, dealt with persons who had been granted probation under RCW 9.95.210 after having been convicted of the particular crimes with which they had earlier been charged. There, however, the similarity between the two situations ends.
RCW 9.95.210 provides, in pertinent part, as follows:
[[Orig. Op. Page 2]] "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, except as hereinafter set forth and upon such terms and conditions as it shall determine." (Emphasis supplied.)
The question considered in both our memorandum opinion and State v. Monday, supra, was the ability of a court to revoke its previous order granting probation. In theMonday case, however, this question did not arise untilafter the expiration of the maximum term of probation which could have been imposed, under the particular facts involved, in that case; i.e., one year, which was the maximum term of the sentence which was imposed and thus deferred by the order granting probation. Conversely, in the two earlier cases relied upon in our memorandum opinion, In re Allen v. Rhay, 52 Wn.2d 609, 328 P.2d 367 (1958), andIn re Jaime v. Rhay, 59 Wn.2d 58, 365 P.2d 772 (1961), the action of the court in revoking its previous order of probation occurred prior to the expiration of the "maximum term of sentence" as imposed but then deferred by the court following the conviction upon which it was based.
In short, we believe it still appropriate to distinguish between the following two questions:
(1) The ability of a trial judge to fix as the termination date of a period of probation pursuant to a deferred or suspended sentence a date later than what would have been the termination date of the sentence itself if that sentence had not been deferred or suspended ‑ and/or to purport to revoke or modify the order of deferral or suspension after the end of the period during which the sentence would have run had it not been deferred or suspended.
(2) The ability of a trial judge to modify or rescind an order of probation after the time period thereof as set forth in the order but before the expiration of the period during which the sentence imposed would have run had it not been deferred or suspended.
State v. Monday,supra, is now unquestionably determinative of the first of these two questions and requires a negative answer thereto. On the other hand,In re Jaime v. Rhay and In re Allen v. Rhay, supra, continue, in our judgment, to govern the second question (i.e., your [[Orig. Op. Page 3]] immediate question as above paraphrased) in those instances where the criminal defendant has not, at the end of the period set forth in his probation order, moved for dismissal under RCW 18.104.22.168/
It is hoped that the foregoing explanation will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/"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."