FIXING OF MINIMUM SENTENCE BY PAROLE BOARD ‑- USE OF DEADLY WEAPON.

FIXING OF MINIMUM SENTENCE BY PAROLE BOARD ‑- USE OF DEADLY WEAPON. 

The Board of Prison Terms and Paroles must fix the minimum penalty pursuant to statute regardless of whether information or findings disclose a deadly weapon was used.

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                                                                  March 20, 1953

Dr. Henry H. Ness
Chairman
Board of Prison Terms and Paroles
County-City Building
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 499

 Dear Sir:

             You have asked this office for an opinion upon the following question: Where an accused has been convicted of a felony and there has been no mention in the information or findings that a deadly weapon was used in committing the felony, must the parole board fix the minimum sentence prescribed by law if it learns through the prosecutor's report that a deadly weapon was used?

             It is the opinion of this office that the board must fix the minimum penalty pursuant to the statute regardless of whether or not the information or findings disclose that a deadly weapon was used.

                                                                      ANALYSIS

             RCW 9.95.030 requires that the parole board must be furnished with a statement from the sentencing judge and the prosecuting attorney of the facts concerning the convicted person's crime.  RCW 9.95.040 requires that the parole board fix minimum sentences for a person armed with a deadly weapon convicted of a felony at a minimum of five years or seven and one‑half years, whichever the  [[Orig. Op. Page 2]] case may be.

             Since the statute requires that the prosecutor furnish a report containing information concerning the facts of the case, then when a fact is brought to the attention of the parole board, in such report, the board has no alternative but to fix the penalty in accordance with the facts presented to it.  This would require the fixing of the minimum term in a case such as that described above.

 Very truly yours,
DON EASTVOLD
Attorney General  

CYRUS A. DIMMICK
Assistant Attorney General