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AGO 1967 No. 6 - February 15, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


CIVIL RIGHTS - SENTENCES - OFFICES AND OFFICERS - SUPERIOR COURT - PAROLE BOARD - GOVERNOR - WHO MAY DISCHARGE AND RESTORE CIVIL RIGHTS TO A PERSON UNDER A SUSPENDED SENTENCE.

A person under a sentence suspended pursuant to RCW 9.92.060 may receive final discharge and restoration to civil rights only from the governor in his exercise of the pardoning power.

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

                                                                February 15, 1967

Honorable Bruce Johnson
Chairman, Board of Prison
Terms and Paroles
Institutions Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1967 No. 6

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            In whom is authority vested to grant a final discharge and restoration of civil rights to a person who has been convicted of a crime where execution of the sentence has been suspended pursuant to RCW 9.92.060?

            Our answer, for the reasons set forth in our analysis, is as follows:

            Only the governor, in the exercise of his pardoning power, may grant final discharge and restore civil rights to a person under a sentence suspended pursuant to RCW 9.92.060.

                                                                     ANALYSIS

            RCW 9.92.060 provides, in pertinent part, as follows:

            "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed  [[Orig. Op. Page 2]] and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine. . . ."

            Your question assumes the case of a person who has been convicted of a crime other than one of those expressly mentioned (with regard to which no suspension of execution of sentence is authorized) to whom has been granted a suspended sentence under this statute.1/   You ask for our advice as to who has the authority to grant a final discharge and restoration of civil rights to such a person during the time he remains under the suspended sentence.  Specifically, you ask whether this authority is vested in (a) the superior court which granted the suspended sentence; (b) the board of prison terms and paroles; or (c) the governor.  We shall now consider each possibility.

            (a)The superior court:

            When sentence is suspended under the foregoing section, the court enters its judgment, imposes sentence and then stays the operation of the sentence "until further order of the court."  The statute does not authorize the court to pardon or remit fines and forfeitures.  State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 Pac. 29 (1922); State v. Davis, 56 Wn.2d 729, 355 P.2d 344 (1960).  Mere passage of time, even the maximum term of a sentence, does not diminish the duration to be served.  State ex rel. Pence v. Koch, 173 Wash. 420, 23 P.2d 884 (1933); State v. Davis, supra.

            InState ex rel. Schock v. Barnett, 42 Wn.2d 929, 933, 259 P.2d 404 (1953), the Washington state supreme court held that once judgment had been entered and sentence imposed, the court could not entertain a motion for probation, stating in part:

            ". . . When it [the entry of the judgment and sentence] occurs, the defendant and, with him, all matters regarding the execution of the sentence are transferred to the executive branch of the government.  The power of the court over the defendant is at an end, and the extent and nature of his discipline for the term  [[Orig. Op. Page 3]] of his sentence are within the sole province of the executive."

            The judgment entered is final and subject to appeal.  However, the term of the sentence does not commence until a revocation of the suspension by the court.  State v. Davis, supra.

            Giving effect to the rationale of these decisions, we conclude that the court retains the power to order the suspension revoked and the sentence served.  Statutory power does not extend to discharging the penalty or further altering the effect of its final judgment.  As the court may not pardon, it cannot discharge and restore civil rights to one who is subject to a sentence suspended pursuant to RCW 9.92.060.

            (b)The board of prison terms and paroles:

            The only statute vesting the parole board with authority to enter a discharge and restoration of civil rights to a convicted person is RCW 9.96.050 (enacted by § 1, chapter 187, Laws of 1961).  This statute reads as follows:

            "When a prisoner on parole has performed the obligations of his release for such time as shall satisfy the board of prison terms and paroles that his final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the prisoner: Provided, That no such order of discharge shall be made in any case within a period of less than one year from the date on which the board has conditionally discharged the parolee from active supervision by a probation and parole officer, except where the parolee's sentence expires earlier thereto.  Such discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certification of discharge shall so state.

            "The discharge provided for in this section shall be considered as a part of the sentence of the convicted person and shall not in any manner be construed as affecting the powers of the governor to pardon any such person."

             [[Orig. Op. Page 4]]

            By its express terms, the provisions of the statute apply only to a "prisoner on parole."  It is thus limited to those over whom the board has jurisdiction with respect to duration of confinement.  InState ex rel. Tingstad v. Starwich, supra, it is indicated that the board does not obtain jurisdiction by virtue of a suspended sentence.  On page 565 of its opinion, the court stated:

            ". . . It is true another statute authorizes a certain board of which the governor is a member to parole on good behavior, but it exercises such poweronly after the sentence has been put into operation by the court. . . ." (Emphasis supplied.)2/

             We therefore conclude that RCW 9.96.050,supra, authorizing the board to grant final discharge and restoration of civil rights lost as a result of a felony conviction to "a person on parole," does not empower the board to grant final discharge and restoration of civil rights to one subject to sentence suspended pursuant to RCW 9.92.060.

            (c)The governor:

            The power of the governor to pardon, and to remit fines and forfeitures, is based upon §§ 9 and 11 of Article III, Washington state Constitution.

            Section 9 provides:

            "The pardoning power shall be vested in the governor under such regulations and restrictions as may be prescribed by law."

            Section 11 provides:

            "The governor shall have power to remit fines and forfeitures, under such regulations as may be prescribed by law, and shall report to the legislature at its next meeting each case of  [[Orig. Op. Page 5]] reprieve, commutation or pardon granted, and the reasons for granting the same, and also the names of all persons in whose favor remission of fines and forfeitures shall have been made, and the several amounts remitted and the reasons for the remission."

            In addition, see RCW 9.96.010, relating to the restoration of civil rights, which provides:

            "Whenever the governor shall grant a pardon to a person convicted of an infamous crime, or whenever the maximum term of imprisonment for which any such person was committed is about to expire or has expired, and such person has not otherwise had his civil rights restored, the governor shall have the power, in his discretion, to restore to such person his civil rights in the manner as in this chapter provided."

            This constitutional power given to the governor is not subject to abrogation by legislation, and is independent of any power resting in the board of prison terms and paroles.  In re Costello, 22 Wn.2d 697, 157 P.2d 713 (1945).  In this case the court quoted from 1 Cooley's Constitutional Limitations (8th ed.) when, on page 705 of this opinion, it stated:

            "'The pardoning power is neither naturally nor necessarily an executive power.  It is a power of government inherent in the people, who by constitutional provision may vest it in whole or in part in any official they choose.'"

            The effect of a pardon then was set forth in State v. Cullen, 14 Wn.2d 105, 127 P.2d 257 (1942), which held that a pardon does not obliterate the offense, but merely condones it and goes no further than to remit the penalty imposed insofar as remains unpaid and to restore the accused's civil rights.

            It seems clear that a person who has been convicted of a crime, sentenced therefor, and then granted a suspension of  [[Orig. Op. Page 6]] the execution of his sentence pursuant to RCW 9.92.060,supra, is a proper subject for exercise of the pardoning power.  From this it follows that the governor may, pursuant to the constitutional and statutory provisions last above noted, grant discharge and restoration of civil rights to a person who is subject to a sentence suspended after it was imposed as provided by RCW 9.92.060.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JOHN C. COONEY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Care should be taken not to confuse a suspended sentence under RCW 9.92.060, supra, with a deferred sentence under RCW 9.95.120.  See,State v. Davis, 56 Wn.2d 729, 355 P.2d 344 (1960).

2/This observation is still pertinent, though the governor is no longer a member of the parole board.  See, also, State ex rel. Schock v. Barnett, supra.  As execution of the sentence is stayed when sentence is suspended under RCW 9.92.060, the authority over the convicted person does not pass to the parole board.

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