CRIMES ‑- FELONY ‑- CONVICTION ‑- COMMISSION OF SECOND FELONY WHILE SENTENCE SUSPENDED ON FIRST FELONY

CRIMES ‑- FELONY ‑- CONVICTION ‑- COMMISSION OF SECOND FELONY WHILE SENTENCE SUSPENDED ON FIRST FELONY.

Where an individual commits a second felony during the period in which the execution of sentence previously imposed has been suspended by the court the first sentence commences at the time of the approval and entry by the court of an order revoking suspension of sentence; the sentence on the second felony commences to run at the expiration of the term of imprisonment for the first felony.

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                                                                 August 17, 1961

Honorable Harris Hunter
Chairman, Board of Prison
Terms and Paroles
Institutions Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 57

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on certain questions which you state as follows:

            1. A man convicted of a crime and placed on suspended sentence commits a new crime and prior to the sentencing for the second crime, the suspended sentence is revoked, do the sentences run concurrently or consecutively?

            2. A man convicted of a crime and placed on suspended sentence commits a new crime and subsequent to the sentencing for the second crime, the suspended sentence is revoked, do the sentences run concurrently or consecutively?

            It is our understanding that your two inquiries relate to felony cases where upon conviction the court has imposed sentence, but suspended or stayed the execution thereof and granted probation either under the provisions of RCW 9.92.060 or RCW 9.95.210.

            Your questions are answered in the following analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Your inquiries require construction of the provisions of RCW 9.92.080 which, for convenience we have divided into two parts, and in so far as pertinent it provides:

            (1) "Whenever a person shall be convicted of two or more offensesbefore sentence has been pronounced for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction shall commence at the termination of the first or other prior term or terms of imprisonment to which he is sentenced;"

            (2) "and whenever a personwhile under sentence of felony shall commit another felony and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms: . . ." (Emphasis supplied.)

            It is to be noted that in construing penal statutes they are to be strictly construed against the state and in favor of the accused.  State v. Thompson, 38 Wn. (2d) 774, 779, 232 P. (2d) 87 (1951), State v. Hemrich, 93 Wash. 439, 161 Pac. 79 (1916).

            InState v. Rinkes, 49 Wn. (2d) 664, 667, 306 P. (2d) 205 (1957), the court in applying the strict construction rule stated:

            "Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes . . ."

            In the inquiries which you propound, the sentences in each instance have been imposed by the court, but the execution of such sentences have been suspended or stayed subject to the order of the court.  Therefore, the question then becomes whether the "sentence has been pronounced" as those terms are employed in the first portion of RCW 9.92.080 quoted in part above.

            InState v. Farmer, 39 Wn. (2d) 675, 678, 237 P. (2d) 734 (1951), the question was whether or not an appeal would lie from an order of the court suspending the imposition of sentence.  In the course of its opinion the court stated as follows:

             [[Orig. Op. Page 3]]

            "There is a distinction, under our statutes, between a suspension of sentencewhere it has been pronounced but execution thereof suspended, and a situation where thepronouncement of sentence is suspended or deferred.  It is the latter situation which confronts us here."  (Single emphasis ours.)

            InState v. Liliopoulos, 165 Wash. 197, 199, 5 P. (2d) 319 (1931), one of the issues before the court was whether or not an appeal would lie from a judgment suspending the sentence which had been previously imposed.

            In the course of its opinion the court stated as follows:

            "We agree that a final judgment is a prerequisite to an appeal.  The judgment was final.  It terminated the prosecution of the appellant by the state.  The judgmentpronounced sentence from one to fifteen years' confinement in the penitentiary.  That was a final consideration and determination of the court on the matters submitted to it.  Following the imposing of the sentence, the court, pursuant to authorization of the suspended sentence statute, ordered that the execution of the sentence be suspended."  (Emphasis supplied.)

            Therefore, in accord with the Farmer and Liliopoulos cases, supra, we are of the opinion that in both of your inquiries, the first portion of RCW 9.92.080 is inapplicable for the reason that the sentences have been pronounced before the suspension of the execution of such sentences and therefore the hypothetical persons have not been "convicted of two or more offenses before sentence has been pronounced for either."

            Finally, we are confronted with the question of the applicability of the second portion of RCW 9.92.080, as to whether or not such persons are "under sentence of felony" at the time of the commission of the second felony.

            The answer to the question of the applicability of the second portion of RCW 9.92.080 to your inquiries, lies in the distinction between the so-called deferred and suspended sentences.  The difference between the deferred and a suspended sentence is clearly pointed out in the cases ofState v. Farmer, supra, and State v. Liliopolous, supra.  In State v. Liliopolous, supra, the court held that where sentence has been pronounced by the court but the execution thereof suspended, there is a final judgment which is appealable.  InState v. Farmer, supra, however, where sentence had not been pronounced by the court,  [[Orig. Op. Page 4]] but merely an order entered suspending or deferring the imposition of sentence, the order was not a final judgment and not appealable.  The fact that the hypothetical person, in both of the suspended sentence circumstances of your inquiries, is not serving the sentence pronounced by the court, but is serving on probation granted by the court, is not, in our view, of particular significance in the determination of the legislative intention in the use of the terms "under sentence of a felony" in RCW 9.92.080.  Probation is a substitute for imprisonment, and, may ultimately, if good conduct be observed, result in the release of such person from the penalties and disabilities of the judgment and sentence which has been pronounced.  But, so long as the sentence has been pronounced, it is of a final and outstanding character, and the person named therein is subject to the penalties and disabilities flowing therefrom.  This, in our opinion, is the characteristic of a sentence which the legislature had in mind in the use of the terms "under sentence of a felony" in RCW 9.92.080.

            Accordingly, we are of the opinion that in both of the instances set forth in your questions that such persons are "under sentence of a felony" as those terms are used in RCW 9.92.080, at the time of the commission of the second felony.  Therefore, we conclude that the answer to both of your inquiries is that the sentences on the first felonies upon which the court had suspended the execution of sentence previously imposed commenced at the time of the approval and entry by the court of an order revoking suspension of sentence and the sentences commenced to run on the second felonies at the time of the expiration of the term of imprisonment on the sentence for the first felony.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Assistant Attorney General