State v. BraithwaiteState v. Braithwaite
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- Before:
- Williams
The principal question on this review is whether a judgment determining guilt and imposing sentence in a felony case should be considered a “conviction” for purposes of the habitual criminal statute if execution of the sentence is suspended under
The facts are that in 1961, Roger Leask Braithwaite was convicted of the crimes of second-degree burglary and first-degree forgery, both felonies; a prison sentence was imposed, but execution thereof was suspended on the following terms and conditions, among others:
1. That defendant shall remain on probation for a period of five (5) years.
2. Abide by the rules and regulations promulgated by the Board of Prison Terms and Paroles and follow implicitly their instructions.
In 1970, Braithwaite was convicted of two counts of robbery, a felony, and given a sentence which was not suspended. In 1976, he was convicted of another felony and in a supplemental information was charged with being a habitual criminal because of the two previous convictions. The habitual criminal statute,
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We begin by observing that the court may suspend execution of sentence under either
Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine: . . .
or under
The court in granting probation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, not exceeding the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.
(
Although the 1961 judgment and sentence does not specifically refer to any of the statutes of the probation act, we are satisfied that the sentencing judge was proceeding thereunder, and not under the suspended sentence act. Braithwaite was put on “probation” and assigned to the Board of Prison Terms and Paroles, two factors which strongly indicate that the court had the probation act in mind. State v. Davis, supra; State v. Monday, 12 Wn. App. 429, 531 P.2d 811 (1975).
The problem is to determine what the legislature meant by the word “convicted,” which may be intended to convey different meanings in different contexts.
Tembruell v. Seattle,
64 Wn.2d 503, 392 P.2d 453 (1964). In
Tembruell,
the Supreme Court was faced with the question of whether a plea of guilty, followed by a suspension of imposition of sentence, constitutes a conviction within the meaning of the
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police pension statute,
The legislature may give whatever meaning it will to a particular word or expression, and, if we understand the legislature‘s intentions, the courts will give it the same meaning. Our primary function in the field of statutory interpretation is to ascertain the legislature‘s intent. . . . That the legislature may declare the entry of a plea of guilty to be a conviction to be weighed by the court in fixing punishment in subsequent criminal proceedings does not give it the same status necessarily in collateral inquiries. The very granting of probation under either a deferred or suspended sentence comes as a matter of grace or privilege; it is a form of clemency awarded in the court‘s discretion to one thought deserving of and who will probably be rehabilitated by it. . . . It being such an act of judicial grace under the statute, the legislature may grant to the court whatever powers it may deem appropriate in imposing conditions. Accordingly, the legislature may designate the entry of a plea of guilty to be regarded by the court as a conviction in the event of later criminal prosecutions without necessarily making the plea to be a conviction for all purposes. The legislature can make of such plea what it will for particular purposes in particular circumstances without being held to have changed the legal effect of such plea for all purposes.
Applying these principles to respondent‘s career, we see that his plea of guilty to grand larceny, coupled with his award of probation and the subsequent dismissal of the information, do not add up to a conviction of felony within the intendments of the police pension statute (RCW 41.20.110 ), even though this sequence of events might be specially considered by the court as a prior conviction in a later criminal action.RCW 9.95.240. . . . But the entry of a plea of guilty, standing alone, unless specially made so by statute does not constitute a conviction. In many situations not pertinent to this discussion, a plea of guilty may be withdrawn, or vacated, or *771 set aside before judgment, in which case it could not be said to be a conviction.
(Italics ours.)
The probation act,
Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.
That proviso is an unmistakable indication of the legislature‘s intent to treat a finding of guilt, followed by suspension of execution of the sentence under the probation act, as a “conviction” in a habitual criminal proceeding. Put another way, the finding of guilt is a “conviction” because it is “specially made so by statute.” Tembruell v. Seattle, supra at 510.
The purpose of the habitual criminal statute is to impose a heavier penalty upon the conviction of one whose guilt is aggravated by the repetition of criminal conduct.
State v. Miles,
34 Wn.2d 55, 207 P.2d 1209 (1949). Judgment in the case of suspended execution of sentence under
Braithwaite also contends that he has now once been put in jeopardy on the habitual criminal charge ánd so is protected from a second trial by our state and federal constitutions, which prohibit double jeopardy “for the same offense.” The habitual criminal statute does not create a crime, but merely enhances the punishment of those found guilty of a crime who are shown to have been convicted of other crimes in the past. State v. Greene, 75 Wn.2d 519, 451 P.2d 926 (1969). The statute does not inflict double punishment for the same offense, nor place the offender twice in jeopardy. State v. Williams, 9 Wn. App. 622, 513 P.2d 854 (1973).
The judgment, insofar as it dismisses the supplemental information, is reversed and the cause remanded for reinstatement of the habitual criminal proceeding.
Farris, C.J., and Andersen, J., concur.Reconsideration denied April 19, 1978.
Review by Supreme Court pending July 21, 1978.