JUSTICE OF PEACE ‑- POWER TO REVOKE ORDER SUSPENDING FINE FOR VIOLATION OF GAME LAWS. POWER TO REVOKE JUDGMENT

JUSTICE OF PEACE ‑- POWER TO REVOKE ORDER SUSPENDING FINE FOR VIOLATION OF GAME LAWS.  POWER TO REVOKE JUDGMENT.

 1. A justice of the peace may revoke an order suspending a fine for violation of game laws only upon proper petition made by the prosecuting attorney.

 2. A justice of the peace cannot modify or revoke a final judgment assessing a fine for violation of the state game laws.

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                                                                   March 23, 1955

Honorable John A. Biggs
Director, Department of Game
509 Fairview Avenue North
Seattle 9, Washington                                                                                                                Cite as:  AGO 55-57 No. 44

 Attention:  !ttMr. Carl N. Crouse,Assistant Director

 Dear Sir:

             You have requested our opinion on the following three questions:

             1. An individual has been arrested and convicted for a violation of the game laws.  The justice court assesses a fine of $250 and advises the defendant that $125 is suspended, with no further explanation.  Should the defendant again be arrested and convicted for violating the game laws, does the previous fine become due?

             2. The facts are the same as the above case, except that at the time of sentencing the court specifies that the fine is suspended only on condition that the defendant is not to be found guilty of violating the state game laws for a period of five years.  Would that portion of the suspended fine become due if the defendant violated the terms of the suspension?

             3. A justice of the peace has found a defendant guilty of violating the state game laws and imposes a fine of $250.  The defendant is instructed to pay $50  [[Orig. Op. Page 2]] at the time of sentencing and $25 per month until the total fine and costs have been paid.  The case is closed for all practical purposes.  May the court reconsider the case several days later and suspend a portion or all of the remaining unpaid fine?

             In answer to the first two questions, the suspended portion of the fine would become due only if and when the court, upon proper petition, exercises its power to revoke the order suspending the fine.

             Your third question is answered in the negative.

                                                                      ANALYSIS

             (1, 2.) In this portion of the opinion, the first two questions will be analyzed together.

             The statute permitting a court to suspend fines or sentences imposed for violations of the game code is section 116, chapter 275, Laws of 1947 (RCW 77.32.270), which provides as follows:

             "Any Judge or Justice of the Peace may suspend the whole or any part of any fine or sentence imposed by him upon any person found guilty of violating any of the provisions of this act or any rule or regulation of the State Game Commission."

             The word "suspension" is defined inSunny Brook Farms v. Omdahl, 42 Wn. (2d) 788, page 792, as follows:

             "'Suspension' is defined in Bouvier's Law Dictionary, (3rd Rev. Rawle's 8th ed.) 3212, as follows:

             "'Suspension.  A temporary stop of a right, of a law, and the like . . .

             "'Suspension of a right in an estate is a partial extinguishment or an extinguishment for  [[Orig. Op. Page 3]] a time.  It differs from an extinguishment in this:  a suspended right may be revived; one extinguished is absolutely dead.'"

             A suspended fine is not a pardon or final discharge of the fine.  State ex rel. Tingstad v. Starwich, 119 Wash. 561, page 565.  It creates a temporary status which may be revoked by the same court ordering the suspension.  The right of a court to revoke a suspended sentence has been upheld inState v. Mallahan, 65 Wash. 287, page 290, wherein our court adopted the following reasoning:

             "'The legislature cannot authorize the courts to abdicate their own powers and duties, or to tie their own hands in such a way that, after sentence has been suspended, they cannot, when deemed proper and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion.  Nor can the free and untrammeled exercise of this power, or the right to pass sentence according to the discretion of the court, be made dependent upon compliance with some condition that would require the court to try a question of fact before it could render the judgment which the law prescribes.  The statute must not be understood as conferring any new power.  The court may suspend sentence as before, but it can do nothing to preclude itself or its successor from passing the proper sentence whenever such a course appears to be proper.'  People ex rel. Forsyth v. Court of Sessions, etc., 141 N.Y. 288, 36 N.E. 386."

             Therefore, when a court suspends a fine, without a condition attached, it may revoke such suspension at any time when deemed proper and in the interest of justice.

             However, with respect to a suspension with a condition attached, the question arises whether the revocation is automatic upon breach of the condition or must the court enter an order of revocation before the fine becomes due.

              [[Orig. Op. Page 4]]

            The above quoted suspension statute in the game code (RCW 77.32.270) is silent on this point.  However, RCW 9.92.060 also permits a court to suspend a sentence "until otherwise ordered by such court."  This statute requires the court to take action before a revocation takes place.  This appears to be the proper rule since the court must hear the facts to determine whether a condition of suspension has been breached.

             Therefore, whether a court suspends a fine, with or without a condition attached, the court must take further action and revoke its order of suspension before the fine becomes due.

             The accepted procedure to initiate a revocation is for the prosecuting attorney to bring a proper petition before the court to vacate its order suspending the fine.  State ex rel. Tingstad v. Starwich, supra; State v. O'Neal, 147 Wash. 169;Ward v. Supt. of State Penitentiary, 127 Wash. 572.

             (3) With respect to question No. 3, RCW 9.92.070 permits the court, at the time of imposing sentence, to provide that the fine may be paid in installments.  We will assume, for the purposes of this discussion, that the sentence imposed was otherwise legal and proper.  It must also be borne in mind that a sentence is equivalent to a judgment.  State v. King, 18 Wn. (2d) 727.

             Now the question is reduced to this:  May a court suspend a proper judgment after it has become final and a portion of the fine has been paid?  InState ex rel. Schock v. Barnett, 42 Wn. (2d) 929, the court stated the rule as follows, at page 932:

             "The entry of final judgment is the controlling event, and the result cannot be altered because, as here, a defendant files a petition for probation after sentence is imposed.  The entry of judgment and sentence, or its affirmance on appeal, marks the final and complete exercise of the court's jurisdiction.  State ex rel. Plumb v. Superior Court, 24 Wn. (2d) 510, 518, 166 P. (2d) 188 (1946).  When it occurs, the defendant and, with him, all matters regarding the execution of the sentence are transferred to the  [[Orig. Op. Page 5]] executive branch of the government.  * * *"

             The cases do not distinguish between modification of a jail sentence and modification of a fine.  Therefore, either action if taken after execution of the sentence, alters or amends the final judgment, and, as is indicated above, cannot be done.  Therefore, in answer to the third question, once the court enters a final judgment and part of the fine has been paid, it cannot thereafter suspend part or all of the remaining fine.

             We hope the foregoing comments will prove to be helpful.

 Very truly yours,
DON EASTVOLD
Attorney General 

JOSEPH T. MIJICH
Assistant Attorney General