103 Wash. App. 862 | Wash. Ct. App. | 2000
The State appeals the trial court’s use of a
The 1995 legislature created a “drug offender sentencing alternative” (DOSA).
The 1999 legislature amended DOSA.
On June 22, 1999, Toney helped sell a small amount of cocaine to an undercover police officer. On June 24,1999, he helped sell another small amount of the same drug. On
At sentencing, Toney acknowledged that he had a prior conviction for a felony that was not a sex offense or a violent offense.
The only question on appeal is whether a trial court erred by applying the 1999 amendment to an offense committed before July 25, 1999.
Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amen-datory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
By its plain terms, this statute says that when a criminal or penal statute is amended, its preamendment version applies to offenses before the amendment’s effective date, “unless a contrary intention is expressly declared in the amendatory . .. act[.]”
Division One has reached the same result. It held in State v. Kane
Toney relies on State v. Grant
The sentence is vacated, and the case is remanded for resentencing.
Armstrong, C.J., and Seinfeld, J., concur.
Former RCW 9.94A.120(6)(a)(i)-(iii) (Laws of 1995, ch. 108, § 3).
Id.
Laws of 1999, ch. 197, § 4, amended former RCW 9.94A.120, Laws of 1995, ch. 108, § 3, as follows:
(6)(a) An. offender is eligible for the special drug offender sentencing alternative if:
(i) The offender is convicted of ((the-manufacture, delivery, or possession with-intcnt to manufacture or deliver-a-controlled substance classified -in Schedule I or II that Í3 a-narcotic drug-or a felony that Í3, under chapter 9A.28 RCW or RCW 69.50-407-a criminal attempt, criminal solicitation, or criminal-conspiracy to commit such crimes,)) a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.310(3) or (4);
(ii) The offender has no current or prior convictions for a ((felony)) sex offense or violent offense in this state, another state, or the United States; ((and))
(iii) For a violation of the uniform controlled substances act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; and
(iv) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order.
See RCW 69.50.401(a).
The conviction was for a 1998 third degree assault. See RCW 9A.36.031(2); former RCW 9.94A.030(33) and (38) (1998) (defining “sex offense” and “violent offense”).
At oral argument, Toney abandoned the equal protection issue set forth in his brief.
RCW 10.01.040.
State v. Kane, 101 Wn. App. 607, 5 P.3d 741 (2000).
See also Laws of 2000, ch. 26, § 1. “[I]ntended to clarify the applicability of statutes creating new sentencing alternatives or modifying the availability of existing alternatives,” it states that “[a]ny sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.” Kane, 101 Wn. App. at 618.
State v. Grant, 89 Wn.2d 678, 575 P.2d 210 (1978).
State v. Heath, 85 Wn.2d 196, 532 P.2d 621 (1975).
It seems obvious that RCW 10.01.040 should have been noted, and either followed or distinguished, in the fifth paragraph of the Heath opinion. In that paragraph, however, the court cites only a California case and a New York case. Heath, 85 Wn.2d at 198. It appears, then, that the parties and the court overlooked RCW 10.01.040.