CRIMES - JUSTICE COURT - JURISDICTION WHERE DEFENDANT APPEALS CONVICTION TO THE SUPERIOR COURT AND APPEAL IS SUBSEQUENTLY DISMISSED FOR WANT OF PROSECUTION

CRIMES - JUSTICE COURT - JURISDICTION WHERE DEFENDANT APPEALS CONVICTION TO THE SUPERIOR COURT AND APPEAL IS SUBSEQUENTLY DISMISSED FOR WANT OF PROSECUTION.

Where a person is convicted of a crime in justice court and his appeal to the superior court is subsequently dismissed for want of prosecution, sentence may be imposed by the superior court or the case may be returned to the justice court for execution of the original sentence.

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                                                                   April 28, 1960

Honorable Lee J. Reynolds
Prosecuting Attorney
Clallam County
Aldwell Building
Port Angeles, Washington                                                                                           Cite as:  AGO 59-60 No. 115

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            If a person, convicted of a crime in justice court, appeals, and his appeal is subsequently dismissed by the superior court for want of prosecution, which is the proper procedure for the prosecutor to follow: (1) to move that the superior court impose sentence, or (2) to move that the case be returned to justice court for execution of the original sentence?

            We conclude that either procedure may be used.

                                                                     ANALYSIS

            A superior court may, in its discretion, dismiss an appeal from a conviction in a justice court for want of prosecution of that appeal.  SeeState v. Stricker, 19 Wn. (2d) 148, 141 P. (2d) 873 (1943), and cases therein cited.  Your question relates to the proper procedure for sentencing the appellant after such a dismissal.

             [[Orig. Op. Page 2]]

            RCW 10.10.060 provides in part:

            ". . . If the appellant shall fail to enter and prosecute his appeal he shall be defaulted of his recognizance, if any was taken, and the superior court may award sentence against him for the offense whereof he was convicted in like manner as if he had been convicted thereof in that court; and if he be not then in custody process may be issued to bring him into court to receive sentence."  (Emphasis supplied.)

            It is clear from this provision that after a dismissal for want of prosecution, the superior court may impose sentence, and that the dismissal of the appeal does not deprive that court of jurisdiction for purposes of sentencing.  State v. Stricker, supra, State v. Moore, 15 Wn. (2d) 460, 131 P. (2d) 148 (1942).  Accordingly, we conclude that it is proper procedure for the prosecutor to move that the superior court itself impose sentence.

            One question remains: Is this the only method of disposing of the case, or can it be returned to justice court for execution of the original sentence?  No Washington case has expressly considered this problem, but language can be found in the Washington cases to the effect that the result of a dismissal is to leave the original sentence of the justice court in effect.  "The dismissal of the appeal deprived the superior court of all further jurisdiction of the cause, and the justice's judgment has the same force and effect as if no appeal had been taken."  State ex rel. Getman v. Webster, 193 Wash. 265, 75 P. (2d) 124 (1938).  Although it was there held that, after a dismissal, the superior court was without jurisdiction to pronounce sentence, it should be noted that the dismissal was the result of a motion to dismiss made by the appellant himself, and not merely the result of a failure to prosecute the appeal.  Thus, the precise holding of the Getman case is not inconsistent with RCW 10.10. 060.  In reaching this result, the court relied on State v. Jones, 80 Wash. 335, 141 Pac. 700 (1914), in which dicta are found to the effect that the result of a dismissal for failure to prosecute an appeal is to leave the appellant subject to punishment under the original conviction in the justice court.  Similar language is found in Goulter v. Huse, 196 Wash. 652, 84 P. (2d) 126 (1938), citing with approval the Getman and Jones cases.  See also Opinion to Honorable Charles R. Maybury, June 28, 1927.

            These dicta, of course, must not be so construed as to deny the power of sentencing given to the superior court by RCW 10.10.060.  However, this statutory provision does not, by its language, make sentencing by the superior court mandatory.  The language is permissive; that is, the court may retain jurisdiction for purposes of sentencing, but need not do so.

             [[Orig. Op. Page 3]]

            Accordingly, we conclude that the prosecutor, in accordance with the language in theJones and Goulter cases, and in accordance with a broad application of the holding of the Getman case, may also proceed by moving that the case be remanded to the justice court for the execution of the original sentence.  See, also, 51 C.J.S. on Justices of the Peace, § 176, p. 327.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

TIMOTHY R. MALONE
Assistant Attorney General