Putnam v. State

930 P.2d 1290, 1996 Alas. App. LEXIS 63, 1996 WL 742457
CourtCourt of Appeals of Alaska
DecidedDecember 27, 1996
DocketNo. A-5909
StatusPublished
Cited by2 cases

This text of 930 P.2d 1290 (Putnam v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Putnam v. State, 930 P.2d 1290, 1996 Alas. App. LEXIS 63, 1996 WL 742457 (Ala. Ct. App. 1996).

Opinion

OPINION

BRYNER, Chief Judge.

Michael F. Putnam was convicted on his plea of no contest to one count of misconduct involving a controlled substance in the third degree, a class B felony. AS 11.71.030., Superior Court Judge Donald D. Hopwood sentenced Putnam to a term of seven years, none suspended. Judge Hopwood also sentenced Putnam to pay a fine of $2,500 and suspended $1,500 of the fine on condition that Putnam successfully complete a five-year period of probation.

Putnam later filed a motion to correct his sentence, requesting that the probation requirement be deleted. Putnam alleged that the sentence was illegal because it required him to be on probation but did not suspend any period of incarceration. Judge Hopwood summarily denied Putnam’s motion, and Putnam filed this appeal, renewing his contention that a sentence imposing probation without suspended incarceration is illegal.

To support his argument, Putnam relies on AS 12.55.090(a);1 he focuses on the second sentence of the provision: “If a crime is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment.” In Putnam’s view, this provision must be read to say that if a sentencing court grants probation for a crime punishable by both a fine and imprisonment, the court “may impose a fine,” but it is required to “place the defendant on probation as to imprisonment.”

Since placing a defendant on probation always requires suspension of some portion of the sentence, see, e.g., Kelly v. State, 842 [1292]*1292P.2d 612, 613 (Alaska App.1992), and since, in Putnam’s view, AS 12.66.090(a) authorizes the court to grant probation only as to imprisonment when a crime is punishable by both a fine and imprisonment, Putnam concludes that a portion of the prison term must be suspended before probation can properly be granted in such cases.

Putnam’s argument crosses swords with the plain meaning of AS 12.55.090(a). If the legislature had wanted the second sentence of the provision to require courts to place defendants on probation only as to imprisonment, thereby precluding probation solely as to a fine, then presumably it would have said that sentencing courts “may impose a fine and must place the defendant on probation as to imprisonment.” Instead, the legislature used the word “may” to modify both “impose a fine” and “place the defendant on probation”; this use of the permissive “may” implies the existence of other alternatives.

Plain meaning is not necessarily determinative.2 Yet Alaska’s case law interpreting subsection AS 12.55.090(a) tends to support the interpretation suggested by the provision’s plain meaning. In Brown v. State, 559 P.2d 107, 109 (Alaska 1977), the supreme court, while admitting that the “interpretation of AS 12.55.090(a) is not free from doubt,” construed the second sentence of that provision to “authorize[] the trial court to impose a fine as a separate punishment in addition to probation where the penalty provision of the violated criminal statute provides for both fine and imprisonment.”

The legislature’s decision to treat fines and imprisonment as independent sentencing components would suggest that either fines or imprisonment may be suspended as a predicate to granting probation. In Manderson v. State, 655 P.2d 1320, 1324 (Alaska App.1983), we assumed this to be the case: noting that Manderson’s five-year term of probation was meaningless without some portion of his sentence — entirely unsuspended as originally imposed — being suspended, we remanded to the trial court, indicating the court could “impose a probationary period only if some portion of Manderson’s sentence or fine is suspended.” And in Kelly v. State, 842 P.2d at 613, emphasizing that probation unaccompanied by something suspended is meaningless, we spoke of the need to suspend “a portion of the sentence”; we drew no distinction between imprisonment and fine.

Putnam nonetheless points out that AS 12.55.090(a) was apparently modeled on former 18 U.S.C. § 3651.3 See Jackson v. State, 541 P.2d 23, 25 (Alaska 1975). The third paragraph of the federal statute is virtually identical to AS 12.55.090(a). Putnam cites federal case law construing the federal statute to require suspension of jail time as a prerequisite to a valid grant of probation.4 [1293]*1293Because AS 12.55.090(a) was modeled on 18 U.S.C. § 3651, Putnam maintains that interpretation of the Alaska provision must be informed by the federal cases.

Putnam’s argument is both right and wrong: federal cases do require suspended jail time as a prerequisite to a valid grant of probation under § 3651; but a careful reading of these cases and a comparison of federal and Alaska law reveal that the federal cases are based on language in § 3651 that has not been carried over to the Alaska Statutes.

Courts have no inherent power to suspend the execution of any portion of a sentence. Pete v. State, 379 P.2d 625, 626 (Alaska 1963). In Alaska, this power derives, not from AS 12.55.090, but from AS 12.55.080. See Curtis v. State, 831 P.2d 359, 361 (Alaska App.1992). Alaska Statutes 12.55.080 provides:

Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best.

Section .080 is closely related to AS 12.55.090(a) — the statute principally at issue in Putnam’s case. These two provisions were enacted together and must be read in pari materia. Jackson v. State, 541 P.2d at 25.

As we have seen, AS 12.55.090(a) mirrors the third paragraph of 18 U.S.C. § 3651, its federal counterpart. By contrast, AS 12.55.080, although roughly patterned after the second paragraph of 18 U.S.C. § 3651, differs markedly from its federal counterpart. Section .080 expressly allows Alaska courts to suspend the execution of any “sentence or a portion thereof.” Under this provision, “a court may suspend the execution of all or a portion of a sentence and place the defendant on probation[.]” Tiedeman v. State, 576 P.2d 114, 116 n. 11 (Alaska 1978) (emphasis omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fyfe v. State
334 P.3d 183 (Court of Appeals of Alaska, 2014)
Hill v. State
22 P.3d 24 (Court of Appeals of Alaska, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
930 P.2d 1290, 1996 Alas. App. LEXIS 63, 1996 WL 742457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/putnam-v-state-alaskactapp-1996.