July 1, Honorable Harris G. Attention: James D. Skaggs, Member. Dear Sir:. In your letter previously acknowledged, you have requested the opinion of this office on questions which we have paraphrased as follows:. Whether a felony conviction, which sentence thereon was deferred or suspended and later dismissed in accordance with the provisions of RCW 9. Whether a felony conviction, which sentence thereon was deferred or suspended and never revoked or dismissed, is a prior conviction for the purpose of setting a mandatory minimum sentence under RCW 9.
We must answer your first question in the negative and refer you to AGO No. We answer your second question in the affirmative after noting two distinct problems involved therein.
Page 2]]. In answering your second question, we should first differentiate between a deferred and a suspended sentence. In this regard, we use the term "suspended sentence" in the following analysis to indicate that situation where the court has adjudged the accused guilty of the crime, passed proper sentence upon him, but arrests the execution or operation of the sentence upon certain specified conditions.
A "deferred sentence" occurs when the court adjudges the accused guilty of the crime but stays or "defers" imposition of sentence and places that person on probation. With this distinction in mind, we will proceed to analyze each of these situations. Your question involves an interpretation of RCW 9.
Accordingly, it is felt that your question resolves itself to the issue of when is a person "previously convicted of a felony. In State v. Liliopoulos , Wash. It would therefore seem that the fact that the trial court has arrested the operation of a sentence already imposed does not affect the validity or finality of said conviction and sentence.
Such a conclusion would then tend to support a proposition that such a "conviction" would also be final as a prior conviction for the purpose of imposing a mandatory minimum sentence on a subsequent conviction. Page 3]]. Although there is substantial authority for the position that the term "conviction" as used in statutes which, in effect, increase the length of punishment for subsequent convictions, requires not only a "conviction" in the accepted sense but also an operative sentence thereon, such reasoning would not seem to be persuasive.
See 5 A. Many jurisdictions which have considered this problem, and it is submitted the majority, although the annotation does not take this position, have arrived at a contrary view and have concluded that the fact that a court has exercised its discretion and sought to rehabilitate an individual without recourse to incarceration does not alter the ultimate fact that such a person has sustained a previous conviction of a felony.
Winn v. Commonwealth , Ky. Olson , Iowa , N. Seemingly, those cases cited at the end of this opinion in regard to deferred sentences should also be included in this reference, as they would appear to be an extension of the theory of the above cases. Although the supreme court of this state has not specifically ruled on this issue, there are cases which tend to support the above reasoning. In the case of State v. This ability to delete information, however, is limited to the information authorized by that statute.
Gilkinson , 57 Wn. The statute only authorizes the deletion of "nonconviction data. As we have already noted, the phrase "conviction or other disposition adverse to the subject" is defined to include "a dismissal entered after a period of probation, suspension, or deferral of sentence[. The category of cases under discussion is therefore expressly excluded from the definition of "nonconviction data.
A record of a dismissal following a deferred imposition of sentence pursuant to RCW 3. The same would be true of a suspended sentence under RCW 3. We hope that this analysis will be of assistance. Very truly yours,. We therefore presume, without deciding, that the same analysis offered in the text with regard to district courts would also apply to municipal courts, under the terms of these similar statutes.
It therefore interpreted statutes that applied to felonies, which are no longer effective. The statutory language it cites, however, is similar to the current language of RCW 3. Both a deferred imposition of sentence and a deferred execution of sentence are postconviction procedures, while a deferred prosecution takes place before a defendant is convicted.
Vinge , 59 Wn. A defendant must first either plead guilty or be found guilty before the court can order either a deferred sentence or a suspended sentence. The inclusion of such proceedings within the definition of information that must be included in a criminal history record strongly implies that it falls within the scope of disposition information that must be reported pursuant to RCW That statute provides in part, "Every offender who has been discharged under RCW 9.
Under that statute, the superior court can remove reference to the conviction in the offender's criminal history, if certain conditions are met, at least for purposes of sentencing on any future convictions. The statute also allows the subject to answer in the negative any future question on an employment application as to whether he or she has been convicted of that crime. Enter search terms.
RCW 9. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. If the sentencing or adjudicating court was a court of limited jurisdiction then a qualified court is the superior court in the county of the applicant's conviction or adjudication.
As of , charges that were dismissed under a deferred sentencing alternative will still count as a prior offense, even though the charge was dismissed, in case of subsequent DUIs. The benefit of this amendment, however, may be that more judges may consider deferring sentences now that they know that even the dismissed charge will count as a prior in the future. Additionally, some prosecutors will condition a reduction from a DUI charge on the defense not seeking a deferred sentence.
Finally, a deferred sentence granted on a lesser offense will not be acknowledged by the DOL and the charge will stay on the driving record. There is no reason not to request a deferred sentence when legitimately able to do so. If successful it will allow a person to lawfully say that she has not been convicted of that crime.
A person need not worry about going through the unpredictable hassle of the expungement process.
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