State v. Shove

754 P.2d 1017, 51 Wash. App. 538, 1988 Wash. App. LEXIS 246
CourtCourt of Appeals of Washington
DecidedMay 26, 1988
DocketNo. 8287-3-III
StatusPublished
Cited by1 cases

This text of 754 P.2d 1017 (State v. Shove) 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. Shove, 754 P.2d 1017, 51 Wash. App. 538, 1988 Wash. App. LEXIS 246 (Wash. Ct. App. 1988).

Opinion

Thompson, J.

The State appeals the early release and resentencing of Arliss Shove, 6 months after a determinate sentence had been entered. We hold the trial court had jurisdiction to modify its sentence, but remand for proper sentencing.

On February 14,1986, Arliss Shove pleaded guilty to four counts of first degree theft pursuant to a plea agreement whereby the State agreed to dismiss a fifth count, and Mrs. Shove agreed to the State's recommended sentence, including full restitution to the victim. On March 21, 1986, the trial court sentenced Mrs. Shove to 12 months' partial confinement at the Spokane County work release facility at Geiger, followed by 12 months' community supervision on each count, to be served concurrently, and ordered her to pay $84,398.35 restitution within 10 years. The sentence was within the standard range under the Sentencing Reform Act of 1981 (SRA).

Approximately 5 months after the sentence was imposed, Mrs. Shove filed a motion asking the court for a "time cut", appending an affidavit by a Geiger work release officer indicating Mrs. Shove was having great difficulty with the long commute from Gieger to her job in.Rathdrum, Idaho, leaving at 3 a.m. and returning at 7 p.m. the following evening. Mrs. Shove was 50 years old. Her health was a concern, and the officer felt if she continued this rigorous schedule, her mental and physical condition would deteriorate to the point where she would be unable to continue her employment resulting in the inability to pay work release costs, continue to pay restitution, or support her family. The victim had no objection to the recommendation.

The court granted the time cut. In doing so, it declared an exceptional sentence. The final order sentenced her to 10 years in prison, suspended except for time already served, and 10 years' probation. Findings of fact and conclusions of law were prepared, basing the exceptional sentence on the concerns expressed by the corrections officer. The State appeals, contending the trial court did not have jurisdiction under the SRA, RCW 9.94A, to modify Mrs. [540]*540Shove's sentence 6 months after imposing a determinate sentence.

Generally, a trial court loses authority to change a previously imposed sentence following a finding of guilt. In re Shriner, 95 Wn.2d 541, 627 P.2d 99 (1981); State v. Sampson, 82 Wn.2d 663, 513 P.2d 60 (1973); State v. Gallegos, 69 Wn.2d 586, 419 P.2d 326 (1966); State ex rel. Schock v. Barnett, 42 Wn.2d 929, 259 P.2d 404 (1953); State v. Cir-kovich, 42 Wn. App. 403, 406, 711 P.2d 374 (1985), review denied, 106 Wn.2d 1005 (1986). Also, it has been held a trial court is without authority to modify its sentence under CR 60(b)(11) based on changes in a defendant's situation which have occurred since entry of judgment. State v. Cir-kovich, supra; State v. Dorosky, 28 Wn. App. 128, 622 P.2d 402, review dismissed, 96 Wn.2d 1011 (1981). The reasoning in these cases would apply to the recently enacted CrR 7.8(b)(5),1 cited by Mrs. Shove, which is identical to CR 60(b)(ll), earlier held applicable to both civil and criminal proceedings. See State v. Scott, 92 Wn.2d 209, 212, 595 P.2d 549 (1979).

Nevertheless, there is support for what the trial court tried to accomplish.2 As to a sentence imposed under the juvenile justice act, in Cirkovich the court held sentence modification based on changes after sentencing was beyond the trial court's power. There, the court looked to certain provisions of RCW 13.40 and held they evidenced the Legislature's intent the juvenile court not have power to modify a sentence under the circumstances presented. It noted [541]*541RCW 13.40.160(1) provides when a juvenile is a serious offender '"the court shall commit the offender to the department'". Cirkovich, at 406. Also, RCW 13.40.185 provides that confinement in excess of 30 days would be served under the Department's supervision. Both criteria applied to Cirkovich; he was a serious offender and his original sentence was for more than 30 days' confinement. The court also noted two provisions allowing for modification under limited circumstances, i.e., modification of restitution and modification where the order of confinement is for less than 30 days. Since the statutes indicated the Department, and not the trial court, had jurisdiction over the defendant, the trial court could not modify. In this case, the SRA provides what was missing in Cirkovich, and the provisions parallel the considerations expressed above. State v. Bern-hard, 108 Wn.2d 527, 741 P.2d 1 (1987) contains the analysis which is applicable here.

In Bernhard, the issue was whether a trial court could sentence a defendant with a prior criminal record to an inpatient drug treatment facility. The State contended under the SRA the trial court had no power to specify the confinement facility, and could not, under the exceptional sentence provisions, define conditions of the community supervision sentence imposed. In rejecting both arguments, the court analyzed the 1984 amendments to the SRA, including RCW 9.94A.383 creating a new section on community supervision. The court recognized the SRA had significantly altered prior sentencing law for felons by distinguishing between them depending upon length of sentence. For felons sentenced to 1 year or less, the court held trial courts retain authority to determine the type of confinement facility. The court stated:

The State argues that important policy reasons dictate that the power to designate a confinement facility must be lodged with an entity having the power to change the designation if certain types of problems develop (medical or psychiatric problems, good or bad behavior, problems between inmates). While this seems true, the Legislature [542]*542has given the trial court the power to modify its sentence if the defendant violates any condition or requirement. RCW 9.94A.200(1). Moreover, the power to sentence a defendant to a low-security special detention center pursuant to RCW 70.48.400, implies the power to alter the sentence if the facility does not suit the defendant's needs.

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Related

State v. Shove
776 P.2d 132 (Washington Supreme Court, 1989)

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Bluebook (online)
754 P.2d 1017, 51 Wash. App. 538, 1988 Wash. App. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shove-washctapp-1988.