State v. Hall

666 P.2d 930, 35 Wash. App. 302
CourtCourt of Appeals of Washington
DecidedJuly 19, 1983
Docket12146-4-I
StatusPublished
Cited by20 cases

This text of 666 P.2d 930 (State v. Hall) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hall, 666 P.2d 930, 35 Wash. App. 302 (Wash. Ct. App. 1983).

Opinions

Scholfield, J.

The State of Washington seeks review of the sentence imposed by the trial judge upon the defendant, Eric Martin Johnson, following Johnson's conviction for second degree robbery. The trial judge, at 9 a.m. on August 3, 1982, placed Johnson on probation for 3 hours, requiring that he spend those 3 hours in his attorney's office, and directed counsel to present an order of dismissal at noon that same day. The order of dismissal pursuant to RCW 9.95.240 was signed by the court and filed in the afternoon of August 3, 1982. We reverse and remand to the Superior Court for resentencing.

Johnson was tried July 23 through 28 with another defendant, Scott Hall. Hall's case was tried to a jury. Johnson waived a jury trial and submitted his case for decision [304]*304by the trial judge.

From the evidence before the court, the trier of fact could find beyond a reasonable doubt that Eric Johnson, Scott Hall, Craig Crnich, and Richard Strickland and two other people who did not participate in the actual robbery started planning the robbery about a week before it occurred. A .38 caliber revolver was borrowed and was used in the robbery. Johnson, Hall, Crnich and Strickland all participated in the robbery.

In the early morning hours of December 22, 1981, a service station employee was robbed at gunpoint of $2,500 he was preparing to deposit in the night deposit facility of a bank. The robber wore a ski mask over his face. He pointed the gun at the victim, took the money and instructed the victim to lie down on the ground or he would "blow [his] head off." The gun used in the robbery was loaded and operable. During the robbery, Johnson and Hall were in Johnson's car parked in a position where they could observe and give warning of the approach of law enforcement officers. They served the function of "lookouts." If officers appeared, the plan was for Johnson to distract them by driving his car in an erratic manner. The keyhole for the night deposit box had been jammed with a pencil lead for the purpose of delaying the service station employee in completing the deposit. After the robbery, the four participants drove to Hall's house, where the proceeds were distributed by setting aside some of it for a drug purchase and dividing the rest. Johnson received $300 as his share.

After the jury reached an apparent deadlock on a vote of 11 to 1 for conviction, Hall pleaded guilty to second degree robbery with allegations of use of a deadly weapon and a firearm deleted. After his conviction by the trial judge on July 28, Johnson was confined in the King County Jail pending sentencing.

The State makes several fundamental arguments. Its first contention is that the trial court acted without authority in entering an order deferring imposition of sentence without requiring the defendant to report to the secretary of cor[305]*305rections for probation supervision as required by RCW 9.95.210.1 Its second contention is that the trial court acted without authority in dismissing the information against the defendant when the dismissal was not preceded by a valid probationary period as required by RCW 9.95.240.2 We agree with both contentions.

A trial court lacks inherent authority to suspend a sentence. State v. Bird, 95 Wn.2d 83, 622 P.2d 1262 (1980); State v. Gibson, 16 Wn. App. 119, 127-28, 553 P.2d 131 (1976). The power to suspend a sentence or defer imposition or execution thereof must be granted by the Legislature. State v. Bird, supra; State ex rel. Woodhouse v. Dore, 69 Wn.2d 64, 69, 416 P.2d 670 (1966). The terms of the statutes granting courts power to suspend sentences and defer imposition of sentences are mandatory and when the statutory provisions are not followed, the action of the court is void. State ex rel. Schock v. Barnett, 42 Wn.2d 929, 259 P.2d 404 (1953). More specifically, it has been held that failure to place a defendant whose sentence was suspended '"under the charge of a parole or peace officer" as provided by statute rendered the portion of the judgment suspending sentence void. State ex rel. Pence v. Koch, 173 Wash. 420, 421, 23 P.2d 884 (1933).

RCW 9.95.210 provides, inter alia, that " [t]he court shall [306]*306order the probationer to report to the secretary of corrections" or his designate. (Italics ours.) As a general rule, the word "shall" possesses a mandatory or imperative character. Ballasiotes v. Gardner, 97 Wn.2d 191, 642 P.2d 397 (1982); Spokane Cy. ex rel. Sullivan v. Glover, 2 Wn.2d 162, 97 P.2d 628 (1940). Consideration of all the terms and provisions of the statutes applicable to suspending and deferring sentences, the nature of the acts in relation to the subject of the legislation, the general object to be accomplished, and the consequences of various constructions as they relate to legislative intent as directed in State v. Huntzinger, 92 Wn.2d 128, 594 P.2d 917 (1979) demonstrates the Legislature intended to make reporting to the secretary of corrections a mandatory step in the probationary process.

In contrast to the Legislature's use of "shall" in establishing a reporting requirement, the Legislature used "may" with reference to granting or denying probation, RCW 9.95.200, suspending sentence, imprisoning the defendant in the county jail, ordering payment of fines or restitution, RCW 9.95.210, and revoking probation, RCW 9.95.220. Presumably, the Legislature intended to distinguish the reporting requirement, making it mandatory, from the other discretionary ("may") requirements. Scannell v. Seattle, 97 Wn.2d 701, 648 P.2d 435 (1982).

A mandatory interpretation also is most consistent with the purposes of probation. An important goal of sentencing is to provide an opportunity for rehabilitation of the defendant so that he or she can resume a productive role in the community. Probation is a means by which judges may provide defendants with this opportunity. Roberts v. United States, 320 U.S. 264, 272, 88 L. Ed. 41, 64 S. Ct.

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State v. Hall
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Bluebook (online)
666 P.2d 930, 35 Wash. App. 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-washctapp-1983.