State v. AlbertsState v. Alberts
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Gene Henry Alberts appeals, contending that the trial court lacked jurisdiction to modify his probation. We affirm.
Facts
Alberts pleaded guilty to one count of third degree theft. On October 23, 1985, the trial court entered an order deferring imposition of his sentence for a period of 1 year pursuant to
Although not contained in the record on appeal, a probation violation report, apparently alleging nonpayment of restitution, was issued on October 16, 1986. Alberts’ 1-year probationary period expired on October 22, 1986. On November 5, 1986, the State filed a notice of probation revocation, alleging that Alberts had “[f]ail[ed] to complete payment of his court-ordered financial obligations“. On November 20, 1986, the trial court heard the matter. After considering the testimony of Alberts and his community corrections officer, the trial court revoked the deferred sentence and imposed a suspended sentence on the condition that Alberts continue to pay the ordered restitution.
From the onset of the hearing, defense counsel objected to the trial court‘s exercise of jurisdiction. Admitting that the violation report was filed before the expiration of the period, defense counsel argued that the operative date for purposes of determining the trial court‘s jurisdiction was November 5 when the notice of probation revocation was *452 filed. The State argued that the violation report was sufficient to put Alberts on notice, claiming that “it was discussed” with Alberts. The trial court then ruled that “jurisdiction was saved by the October 16 violation report.”
Discussion
At issue in this case is the trial court‘s jurisdiction to modify probation under present
The court shall have authority at any time prior to the entry of an order terminating probation to (1) revoke, modify, or change its order of suspension of imposition or execution of sentence; (2) it may at any time, when the ends of justice will be subserved thereby, and when the reformation of the probationer shall warrant it, terminate the period of probation, and discharge the person so held.
(Italics ours.) Laws of 1982, 1st Ex. Sess,, ch. 47, § 11. Former
The court shall have authority at any time during the course of probation to (1) revoke, modify, or change its order of suspension of imposition or execution of sentence; (2) it may at any time, when the ends of justice will be subserved thereby, and when the reformation of the probationer shall warrant it, terminate the period of probation, and discharge the person so held.
(Italics ours.)
Case law interpretation of the former statute held that the trial court‘s jurisdiction to modify probation ended with the probationary period. See State v. Mortrud, 89 Wn.2d 720, 724, 575 P.2d 227 (1978); State v. Hawkins, 24 Wn. App. 925, 926, 604 P.2d 185 (1979). Therefore, unless the probationary period was tolled, State v. Campbell, 95 Wn.2d 954, 957, 632 P.2d 517 (1981), or unless the State had filed a petition for revocation within the period and diligently pursued the matter within a reasonable time after the period expired, State v. Hultman, 92 Wn.2d 736, 741-42, 600 P.2d 1291 (1979), the trial court could not exercise jurisdiction over the probationer once the period had ended. In so holding, the appellate courts focused on *453 the need to discourage administrative inertia, noting that only violations of a technical nature occurring late in the period would go unpunished because criminal sanctions were always available for more serious offenses. Mortrud, at 724.
In deciding that the trial court‘s jurisdiction was coextensive with the probationary period, the
Mortrud
court and its progeny relied on the “during the course of probation” language in former
The Legislature is presumed to be aware of past judicial interpretations of its legislation. Abbott v. General Accident Group, 39 Wn. App. 263, 268, 693 P.2d 130 (1984), review denied, 103 Wn.2d 1027 (1985). Consequently, the passage of the amendment to this unambiguous statute may indicate an intent to change the law. See Abbott, at 268. Because an amendment changes an existing statute, the general rule of statutory interpretation that the surrounding circumstances are to be considered is particularly applicable: The court will determine what defects existed in the original act, which defect the Legislature intended to cure, and then will construe the amendment so as to reduce or eliminate the defect intended to be remedied. 1A C. Sands, Statutory Construction § 22.31 (4th ed. 1972).
*454 Reports from the House Judiciary Committee Bill Files, HB 600, §§ 9, 11 (1981), indicate that the Washington Association of Prosecuting Attorneys (WAPA) was the principal proponent for the amendment. In its report, WAPA stated that the purpose of changing the statute was the following:
These sections deal with persons who, after being previously convicted of a crime and given leniency in the form of a suspended or deferred sentence and probation, commit another crime or fail to make restitution within the period of suspension or deferral. The Supreme Court has decided, essentially, that a judge cannot act in these cases if the period has expired before the judge is aware that leniency was misplaced. This section would allow the judge to take appropriate action until the judge had entered an order finding the defendant had complied with the conditions of probation or suspension. It will be particularly helpful in enforcing restitution and save the costs of a second trial for subsequent crimes.
The language of the amendment together with this legislative history leave no doubt that the Legislature intended to change the law. We, therefore, hold that under present
In anticipation of our holding, Alberts maintains that a separate order is not needed and that his probation order is “self-executing“, that is, it is the actual order terminating probation. Apparently, Alberts bases his argument on the following language contained in the order: “Ordered that the imposition of sentence against the Defendant herein be, and the same is hereby deferred pursuant to
Alberts also argues that our interpretation would lead to an absurd result because the trial court could revoke probation years after the probationary period expired. However, this argument should be made to the Legislature, the
*455
body from which the superior court‘s power regarding probation is derived.
See State v. Nelson,
92 Wn.2d 862, 864, 601 P.2d 1276 (1979). We note that
Affirmed.
Grosse and Pekelis, JJ., concur.
Review denied by Supreme Court September 1, 1988.
Notes
One case has referred to present
” Conditions may be imposed on probation. In granting probation, the court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.”