Opinion
No. 60769-3-I.
January 4, 2010.
Appeals from a judgment of the Superior Court for King County, No. 08-1-04149-9, Suzanne M. Barnett, J., entered August 1, 2008.
Affirmed in part and remanded by unpublished opinion per Appelwick, J., concurred in by Grosse and Leach, JJ.
ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING AND SUBSTITUTING OPINION
Appellant having filed a motion for reconsideration of the opinion filed November 16, 2009, and the court having determined that said motion should be granted and the opinion filed on November 16, 2009, should be withdrawn and a substitute unpublished opinion be filed. Now, therefore, it is hereby
ORDERED that appellant's motion for reconsideration is granted, the opinion filed November 16, 2009, is withdrawn, and a substitute unpublished opinion be filed.
DATED this _____ day of __________ 2010.
Randy Linerud appeals his sentence for a conviction of failure to register as a sex offender. Because the standard range sentence exceeded the statutory maximum, the court included a notation in the judgment and sentence that the total time served could not exceed the statutory maximum. Linerud contends that the sentence is indeterminate because the sentence exceeds the statutory maximum and he may earn early release credits. He also argues that the court violated the separation of powers doctrine by delegating its sentencing power to the Department of Corrections. We originally agreed with Linerud that his sentence was indeterminate and remanded his case to the trial court so it could specify a term of community placement that would not exceed the statutory maximum. The Supreme Court later remanded this case in light of its decision in In re Personal Restraint of Brooks, holding that the potential for earned early release does not render a sentence indeterminate. The Legislature apparently also agreed with Linerud's argument because it adopted an amendment to RCW 9.94A.701(8) to provide that
166 Wn.2d 664, 211 P.3d 1023 (2009).
[t]he term of community custody specified by this section shall be reduced by the court whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021.
Law of 2009, ch. 375, § 5.
Because this amendment applies to all cases in which the community custody term has not yet been completed, we again remand to the trial court to reduce the period of community placement accordingly.