Opinion
No. 52681-2-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-07218-4. Judgment or order under review. Date filed: 06/25/2003. Judge signing: Hon. Deborah Fleck.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), James Allen Ferrell, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
RCW 9.95.230 authorizes the sentencing court to revoke probation `at any time prior to the entry of an order terminating probation.' Because an order terminating probation was not entered here, the court had jurisdiction to revoke probation based on violations that Keina Young committed during the one-year probationary period of her gross misdemeanor sentence. We affirm.
FACTS
Young entered an Alford plea to one count of harassment, a gross misdemeanor, in Superior Court. On November 30, 2001, Young was sentenced in King County Superior Court to a 12-month sentence. The court suspended the sentence on condition that Young serve 90 days, pay a $500 victim penalty assessment, commit no new offenses, and successfully complete an anger management course within four months of release. Young's probationary period was set at 12 months and ordered tolled during her incarceration. On May 19, 2003, the State filed a Notice of Sentence Violation alleging that Young had not made payments toward her financial obligation and had not completed the anger management course. Young admitted the allegations but offered explanations at the hearing. The court imposed a 60-day sanction. This appeal follows.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
DECISION
Before 1982, a trial court's authority to revoke probation was limited to the course of the probationary period, unless the probationary period was tolled, or the State had filed a petition for revocation within the period and diligently pursued the revocation within a reasonable time after the probationary period expired. But in 1982, the Legislature enacted the current version of RCW 9.95.230, which provides:
State v. Holmberg, 53 Wn. App. 609, 611 n. 2, 768 P.2d 1025 (1989); State v. Hultman, 92 Wn.2d 736, 741, 600 P.2d 1291 (1979); State v. Monday, 85 Wn.2d 906, 908, 540 P.2d 416 (1975), overruled on other grounds, Petition of Phelan, 97 Wn.2d 590, 596, 647 P.2d 1026 (1982).
The court shall have authority at any time prior to the entry of an order terminating probation to (1) revoke, modify, or change its order of suspension of imposition or execution of sentence; (2) it may at any time, when the ends of justice will be subserved thereby, and when the reformation of the probationer shall warrant it, terminate the period of probation, and discharge the person so held.
The Legislature also similarly amended RCW 9.92.064, by adding that `Prior to the entry of an order formally terminating a suspended sentence the court may modify the terms and conditions of the suspension or extend the period of the suspended sentence.'
In State v. Alberts, this court found that in amending the statute the Legislature clearly intended to change the law, in part to account for situations where the probationary period expired before the sentencing judge was aware that probation had been violated. This court held that the statute clearly gave the courts authority to entertain a State's petition to revoke probation until an order was entered terminating probation. The defendant in Alberts argued that this interpretation would lead to courts revoking probation years after the probationary period expired. However, we declined to pursue this line of inquiry because the defendant there was not brought before the court years after his probationary period ended. Subsequent cases have agreed with this interpretation of the statute. In Holmberg, the State filed a petition to revoke the defendant's probation four months after the probationary period because the defendant committed a robbery four days after the period ended. The Holmberg court agreed that a petition to revoke probation could be entertained as long as no order had been entered terminating probation, but held that the petition must be based on conduct that occurred during the probationary period. In State v. Hoffman, although the probation period had not expired when the State filed a petition to revoke for the defendant's violations, the court also concluded that the statute intended for the court to retain jurisdiction to revoke or modify probation until an express order terminating probation is entered.
51 Wn. App. 450, 454, 754 P.2d 128 (1988).
Alberts, 51 Wn. App. at 454-55.
Holmberg, 53 Wn. App. at 610.
Holmberg, 53 Wn. App. at 613.
State v. Hoffman, 67 Wn. App. 132, 135, 834 P.2d 39 (1992).
Young cites RCW 9.95.210(1), which, as Alberts noted, may provide a two-year outer limit on the court's jurisdiction over probationary sentences: In granting probation, the superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.
But contrary to Young's contention, nothing in this statute provides a limitation on the authority of the court to act any time before that two-year period has ended. The State's motion to revoke and the hearing were both held before two years had run. RCW 9.95.210 did not deprive the trial court of jurisdiction to act in this case.
As we stated in Alberts, an argument that the statute is absurd because a trial court may revoke probation years after the probationary period has expired should be made to the Legislature, the body from which the superior court's probationary power is derived. Young challenges only the court's jurisdiction in this case. Because the court based its revocation on violations that occurred during the one-year period of actual probation, no order terminating probation had been entered and the two-year statutory limitation had not been reached when the notice of violation was filed, the court did not err in imposing part of the remainder of Young's sentence.
Alberts, 51 Wn. App. at 455.
Affirmed.
APPELWICK, KENNEDY and COLEMAN, JJ.