State v. Stewart

149 P.3d 391
Court of Appeals of Washington·Decided December 11, 2006·No. 57339-0-I·Published·Cited by 4 cases

Opinion

149 P.3d 391 (2006)

STATE of Washington, Respondent,
v.
Kevin Christopher STEWART, Appellant.

No. 57339-0-I.

Court of Appeals of Washington, Division 1.

December 11, 2006.

Kevin Christopher Stewart, Everett, WA, (Appearing Pro Se).

Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, for Respondent.

COLEMAN, J.

¶ 1 Kevin Stewart appeals his sentences, contending that he is entitled to credit on all six of his sentences for time served between the date he was booked for eluding, July 9, 2004, until the date he was sentenced on all of the charges, October 18, 2005. One of Stewart's charges dates back to August 4, 2004, and four date back to December 22, 2004. The trial court did not err by refusing to credit these sentences with time served calculated from the date of his initial booking on July 9, 2004.

FACTS

¶ 2 Stewart was charged on July 1, 2004, with attempting to elude a pursuing police officer (cause number XX-X-XXXXX-X). He was booked on that charge on July 9, 2004. On August 4, 2004, he was booked on a second degree theft charge (cause number XX-X-XXXXX-X). He was booked and charged with second degree murder on December 22, 2004 (cause number XX-X-XXXXX-X). Stewart remained in confinement from the date he was booked on the eluding charge, July 9, 2004, until the date he was sentenced, October 18, 2005.

¶ 3 He pleaded guilty to the theft charge on August 26, 2005, and to the eluding charge on September 21, 2005. On September 28, 2005, the State filed an amended information in cause number XX-X-XXXXX-X (the original second degree murder charge). The amended information alleged four counts: vehicular homicide, second degree possession of stolen property, possession of a controlled substance, and second degree identity theft. The vehicular homicide count replaced the earlier second degree murder count. Stewart pleaded guilty to all four counts.

¶ 4 He was sentenced for all six convictions on October 18, 2005. At the sentencing hearing, he argued that the court should grant all six of his sentences credit for time served from July 9, 2004, until the date he was sentenced, October 18, 2005 (466 days). The State argued that Stewart should not receive any credit for time served on the charges in cause number XX-X-XXXXX-X. The court gave *392 Stewart credit for time served on the theft charge calculated from the date he was booked for theft, August 4, 2004, until October 18, 2005 (440 days). For the vehicular homicide charge in cause number XX-X-XXXXX-X, the court gave Stewart credit for time served calculated from the date he was booked under that cause number, December 22, 2004, until October 18, 2005 (300 days). The court imposed concurrent high-end standard range sentences for each conviction. Stewart received a 116-month sentence for the vehicular homicide conviction and shorter sentences for the other five convictions. Stewart appeals his sentences. The State originally cross-appealed but later withdrew its cross-appeal. We affirm.

ANALYSIS

¶ 5 The trial court did not err by refusing to grant Stewart credit for time served on each of his six sentences from the date of his initial booking on eluding. The relevant statute, RCW 9.94A.505(6), does not direct that Stewart should be given credit for time served on all of his sentences from the date of his initial booking for eluding, July 9, 2004. RCW 9.94A.505(6) states: "The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced."[1] This language indicates that Stewart should be given credit only for presentence time he has actually served on a charged offense. Stewart should not receive credit for time served from July 9, 2004, on all of his sentences because he was not incarcerated for theft until August 4, 2004, and was not incarcerated for the charges in cause number XX-X-XXXXX-X until December 22, 2004.

¶ 6 State v. Davis, 69 Wash.App. 634, 849 P.2d 1283 (1993) supports the result reached here. In Davis, the defendant committed a robbery in Snohomish County on September 14, 1987. Davis, 69 Wash.App. at 636, 849 P.2d 1283. Three days later he was arrested in Montana for another robbery. Davis, 69 Wash.App. at 636, 849 P.2d 1283. On May 20, 1988, he was sentenced in Montana to 25 years. Davis, 69 Wash.App. at 636, 849 P.2d 1283. On March 19, 1991, Davis executed a demand for final disposition of all charges against him pursuant to the Interstate Agreement on Detainers. Davis, 69 Wash. App. at 636, 849 P.2d 1283. He was then arraigned in Snohomish County on June 5, 1991. Davis, 69 Wash.App. at 636, 849 P.2d 1283. He was convicted of the Washington robbery and sentenced to 70 months in prison to run concurrently with the sentence he was serving in Montana. Davis, 69 Wash. App. at 637, 849 P.2d 1283.

¶ 7 Davis contended that he was entitled to credit on his Washington sentence for time served on his Montana sentence. Davis, 69 Wash.App. at 641, 849 P.2d 1283. The court disagreed. In construing former RCW 9.94.120(14), recodified as RCW 9.94A.505(6), the court concluded that the trial court did not err in granting Davis credit only for the pretrial time served on the Snohomish County charges, starting on June 5, 1991. Davis, 69 Wash.App. at 637, 641, 849 P.2d 1283. Davis received no credit for time served against his Washington sentence for time he served on his Montana sentence. Davis was given credit only for time served from the date he was taken into custody in Washington on the Snohomish County robbery charge. By analogy, the court was not required to credit all of Stewart's sentences with time served from July 9, 2004, because *393 he was not in custody for all of his charges starting from that date.

¶ 8 State v. Watson, 63 Wash.App. 854, 822 P.2d 327 (1992) also supports this interpretation of RCW 9.94A.505(6). In Watson, the defendant argued that he should receive credit for time served on other sentences imposed prior to the date of sentencing. Watson, 63 Wash.App. at 859, 822 P.2d 327.

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State v. Stewart, 149 P.3d 391 (Wash. Ct. App. 2006).

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