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Bob Ferguson

AGO 1957 No. 106 -
Attorney General John J. O'Connell


The deferred or suspended imposition of sentence under RCW 9.95.240 which is granted after a plea of guilty is made to a felony charge, which plea is later changed to not guilty and the information dismissed, is not a prior conviction within the provisions of RCW 9.95.040 (2).

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                                                                  August 2, 1957

Honorable James D. Skaggs
Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 106

Dear Sir:

            We have your request for an opinion on the problem arising from the following set of facts.  We will refer to the inmate involved as "A."  In February of 1952, "A" pleaded guilty to the crime of unlawfully taking an automobile without the owner's permission.  At that time the trial court suspended or deferred the imposition of sentence for at least five years on probationary conditions.  In October of 1954, after "A" had satisfactorily complied with the terms of his probation, the trial court granted "A 's" request that he be allowed to change his plea to not guilty.  Thereupon the court dismissed the information charging the crime.  In June of 1955, "A" was charged and convicted of the crime of robbery and sentenced to a twenty-year maximum term.  During the commission of the robbery a deadly weapon was used.  We paraphrase your question as follows:

            Is the deferred or suspended imposition of sentence under RCW 9.95.240 a prior conviction for a felony requiring the imposition of a seven and a half year minimum sentence under RCW 9.95.040 (2)?

             [[Orig. Op. Page 2]]

            We answer your question in the negative.


            RCW 9.95.240 provides in part that upon satisfaction of probation a guilty plea to an information may be withdrawn, a plea of not guilty entered, and the information dismissed in the discretion of the court,

            ". . .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."

            RCW 9.95.040 (2) provides in part as follows:

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

            In the case ofState v. Burnett, 144 Wash. 598, in interpreting a statute providing that "every person convicted the second time of a violation of any provision of this act shall be punished . . ." and prescribing a greater punishment for a second conviction than for a first conviction, the court stated as follows:

            ". . . The argument is that, since the word 'convicted,' used in this statute, means not only a former finding or plea establishing the guilt of the accused, but also a former final, enforceable judgment based upon such establishment of guilt, the information should so charge the prior conviction.  While, under our decision in State v. Zounick, 133 Wash. 638, 234 Pac. 659, we have held it to be necessary that the proof shall establish such final judgment, before an accused can be visited with the greater punishment, as prescribed by § 7339 above quoted from, we think it is not necessary to so charge the prior conviction in the information.  The statute using the word 'convicted,' the information need go no farther than to use that  [[Orig. Op. Page 3]] word in charging the former conviction; that word, as used in the statute, manifestly meaning a finding or plea of guilty and an enforceable judgment rendered thereon in a court of competent jurisdiction."  (Emphasis supplied.)

            Our supreme court has held that until sentence is pronounced there is no final judgment.  State v. Rose, 42 Wn. (2d) 509; State v. Farmer, 39 Wn. (2d) 675.

            The general rule in this state is that prior convictions import the element of finality requiring a judgment and sentence.  State v. Zounick, 133 Wash. 638;State v. Burnett, supra.  See Annotations, 5 A. L. R. (2d) 1080, "What Constitutes Former 'Conviction.'"  The general principle which prompts this rule is well stated in 5 A.L.R. (2d) 1085, quoting fromPeople v. Schaller, 229 N.Y.S. 492:

            "'. . . where disabilities, disqualifications, and forfeitures are to follow upon a conviction, in the eyes of the law, conviction is construed as meaning that condition which is evidenced by judgment and sentence; . . .'"

            We submit further that the above portion of RCW 9.95.240 is not applicable or pertinent to parole board proceedings since it is limited in its application to criminal prosecutions.  We are here concerned only with the administrative function of the board fixing the minimum duration of confinement for one "convicted" of a crime.

            Based on the foregoing analysis, we conclude that the deferment of the imposition of a sentence under RCW 9.95.200 and 9.95.210 followed by a dismissal does not constitute a "prior conviction" under RCW 9.95.040 (2) requiring the imposition of a minimum sentence of seven and a half years.

Very truly yours,

Attorney General

Assistant Attorney General