COURTS ‑- DEFERRED IMPOSITION OF SENTENCE ‑- CRIMES ‑- MODIFICATION AND REVOCATION OF PROBATION

COURTS ‑- DEFERRED IMPOSITION OF SENTENCE ‑- CRIMES ‑- MODIFICATION AND REVOCATION OF PROBATION

Prior to the expiration of the maximum term, the court has the authority to revoke or modify a probation granted when imposition of sentence was deferred, even though the probationary period specified in the court's order has expired.

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                                                                December 4, 1957

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane, Washington                                                                                                              Cite as:  AGO 57-58 No. 137

Dear Sir:

            You have requested an opinion of this office on a matter pertaining to revocation of orders of probation.  We paraphrase your question as follows:

            Does a court have the authority to revoke or modify a probation after the period specified in the order of probation has passed but prior to the expiration of the maximum term?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The conclusion we reach here is in harmony with our opinion of April 18, 1949, to the prosecuting attorney of Pierce County (49-51 AGO 13d) [[Opinion No. 49-51-13]].  We note, however, that §§ 5b to 5d of chapter 125, Laws of 1935, which are quoted in our prior opinion, are now RCW 9.95.210 to 9.95.240, as amended by chapter 227, Laws of 1957.  The amendments of the 1957 session did not make any material change in those quoted sections insofar as your question is concerned.

            We assume here that there has been no order entered allowing the change of plea and dismissal of the information as is contemplated by RCW 9.95.240.

             [[Orig. Op. Page 2]]

            A court does not lose jurisdiction as to one who is placed upon a term of probation by the mere running of such term.  In re Rudnik, 338 Mich. 577, 61 N.W. (2d) 597; People v. Williams, 24 Cal. (2d) 848, 151 P. (2d) 244; 24 C.J.S., Criminal Law, § 1618, page 187.  Rather, under such statutes as RCW 9.95.210, it has been held elsewhere that sentence may still be imposed after the running of the probation period but prior to the expiration of the maximum term.  In re Rudnik, supra; Hollandsworth v. U.S., 34 F. (2d) 423; Williams v. Hunter, 165 F. (2d) 924; 24 C.J.S., Criminal Law, § 1572, page 74.

            In discussing the parallel and similar federal probation statute, 18 U.S.C.A. § 3561, the court stated in Williams v. Hunter, supra, at page 926, the following:

            ". . . the great weight of authority construes the statute to authorize the courts to supervise the probationer not only during the period of his active probation but for the term of the maximum sentence which might have been imposed. . . ."

            That the foregoing is also the law of this state is made apparent byState v. Farmer, 39 Wn. (2d) 675, 679, wherein the following is announced:

            ". . . deferment of sentence and probation are placed in the same category; neither is aright belonging to the defendant.  Once there is a plea or verdict of guilty, suspension of sentence and probationary conditions become a disciplinary measure which the trial judge may use within the limits of the statute.  Its use is solely dependent upon his sound discretion.

            "The 'Order Suspending Imposition of Sentence' of January 14, 1949, was to

            "'. . . remain in full force and effect until the further order of the court or until the same is revoked, modified or changed, or the period of probation is terminated by an order of the court, as provided by law.'

            "The statute (Rem. Rev. Stat. (Sup.), § 10249-5c and 10249-5d [P.P.C. §§ 787-5, 787-7]) recognizes the discretionary right of the trial court to revoke, modify or change its order at any time."

             [[Orig. Op. Page 3]]

            Accordingly, it is the opinion of this office that a court has authority to revoke or modify a probation after the period specified in the order of probation has passed but prior to the expiration of the maximum term.  Further, inasmuch as such authority is derived from the statute and the court's inherent powers, the particular wording of the order of probation, e.g., ". . . until the further order of the court," is not determinative.

            We trust that this analysis satisfactorily answers your question.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRANKLIN K. THORP
Assistant Attorney General