Summary
relying on State v. Nelson, 92 Wn.2d 862, 601 P.2d 1276, State v. Hultman, 92 Wn.2d 736, 600 P.2d 1291, and Mortrud, 89 Wn.2d 720
Summary of this case from State v. MayOpinion
No. 3219-3.
December 4, 1979.
[1] Criminal Law — Punishment — Probation — Revocation — Timeliness. A trial court has no authority to revoke a defendant's probation if the petition for revocation was not filed prior to the end of the probationary period.
Nature of Action: A petition to revoke a defendant's probation was filed after the probationary period had expired. Superior Court: The Superior Court for Spokane County, No. 23173, Donald N. Olson, J., entered an order revoking probation on January 4, 1979.
Court of Appeals: Holding that the trial court's authority to revoke probation expired at the end of the probationary period, the court reverses the order of revocation.
Robert J. Roberts and Dellwo, Rudolf Schroeder, for appellant.
Donald C. Brockett, Prosecuting Attorney, and Peter S. Schweda, Deputy, for respondent.
In this appeal, defendant challenges the authority of the trial court to enter an order revoking her probation. Our disposition is controlled by State v. Nelson, 92 Wn.2d 862, 601 P.2d 1276 (1979) (overruling sub silentio In re Myers, 20 Wn. App. 200, 579 P.2d 1006 (1978), and one of the alternative holdings of State v. Haugen, 22 Wn. App. 785, 591 P.2d 1218 (1979)). There, the court held that a superior court has no jurisdiction to revoke or modify a defendant's probation where the motion to revoke is filed after the probationary term has expired. RCW 9.95.230. This rule applies to cases in which the superior court has deferred sentencing as well as to those cases in which sentence is imposed but its execution suspended. See also State v. Mortrud, 89 Wn.2d 720, 575 P.2d 227 (1978) and State v. Hultman, 92 Wn.2d 736, 600 P.2d 1291 (1979). Here, an order modifying defendant's probation and extending it for 2 years was entered after the defendant's probation on two separate charges had expired. There is no evidence that the State petitioned the court for this order before the end of defendant's probationary term. Hence, that order is void, and the subsequent order revoking defendant's probation is also void.
Reversed.