Opinion
No. 62287-1-I.
May 4, 2009.
Petition for relief from personal restraint.
Petition granted and case remanded by unpublished opinion per Dwyer, J., concurred in by Schindler, C.J., and Lau, J.
UNPUBLISHED OPINION
Christopher Mortenson filed this personal restraint petition challenging the jail sentences he received for several misdemeanor and gross misdemeanor offenses in Federal Way Municipal Court at a probation violation hearing. We grant the petition and remand for a new violation hearing at which the trial court will be limited in the imposition of sanctions by the constraints of RCW 3.50.340.
Mortenson was sentenced for several offenses on April 7, 2006. Among these were a count of driving under the influence (DUI), for which the court imposed 365 days in jail and suspended 175 days, and a count of driving while license suspended in the first degree (DWLS 1), for which Mortenson received a sentence of 365 days jail with 185 days suspended. Following his violation of several conditions of probation and the commission of new offenses, Mortenson came before the court on March 28, 2007. At that time, the court ordered that jail time of 261 days would be imposed on the DUI charge and 335 days would be imposed on the DWLS 1 charge.
Under RCW 3.50.340, upon a proven allegation of violation of the conditions of a suspended sentence, a municipal court may impose all or part of the previously suspended sentence, but may not impose more time than originally suspended. Here, the face of the sentencing order displays the apparent defect that the court imposed more time on each of these offenses than it had previously suspended.
Without actually addressing RCW 3.50.340, the City contends that there is no error because the court at the revocation hearing chose to resentence Mortenson rather than merely impose previously suspended jail time. The City argues the new sentence is lawful because the combined total of Mortenson's jail sentences did not exceed the potential statutory maximum for all his offenses. But RCW 3.50.340 does not allow for resentencing under these circumstances. Rather, the court possesses only authority to impose all or part of any sentence that had been previously suspended.
Mortenson contends that he is entitled to immediate release, or alternatively a new revocation hearing, to address this and other claims he makes regarding his sentences. We conclude that a new hearing, conducted at the first available opportunity, is the appropriate remedy.
Mortenson's contention that he is entitled to immediate release is dependent, in part, on factual disputes between the parties about whether the trial court expressly ordered that each of the sentences the court entered on April 7, 2006, would run consecutively to each other or merely consecutive to other sentences and concurrently with each other. This dispute is appropriately resolved in the trial court, which will have access to the audio recordings of earlier proceedings, which are not before this court. Additional factual disputes between the parties regarding credit for time served and earned early release credits likewise should be resolved at that time. Mortenson may thereafter file an appeal to Superior Court pursuant to RALJ 2.4 if he wishes to dispute the trial court's findings in that regard, or otherwise wishes to challenge the results of the new violation hearing.
The petition is granted and the case is remanded to the Federal Way Municipal Court for appointment of counsel for the petitioner and a new revocation hearing as soon as practicable.