Opinion
No. 29544-3-III.
May 17, 2011.
Appeal from a judgment of the Superior Court for Benton County, No. 10-1-00341-3, Cameron Mitchell, J., entered June 17, 2010.
Reversed and remanded with instructions by unpublished opinion per Kulik, C.J., concurred in by Sweeney and Brown, JJ.
UNPUBLISHED OPINION
The Department of Corrections (DOC) timely seeks postsentence review under RAP 16.18 of Edward Leland Doescher's sentence imposed for his 2010 Benton County convictions upon plea of guilty to residential burglary and two gross misdemeanor counts of violation of a pretrial protection order. The court imposed a 16-month sentence in a DOC prison facility, consisting of 14 months for the felony residential burglary and a consecutive 60-day sentence for the gross misdemeanor counts, which run concurrently with each other.
The DOC contends the sentencing court lacked authority to impose prison time for the gross misdemeanor offenses, and that the judgment and sentence must be amended to require that any incarceration for those offenses be served in county jail rather than a DOC facility. We agree.
Under the classification of crimes statutes, chapter 9A.20 RCW, "[e]very person convicted of a gross misdemeanor . . . shall be punished by imprisonment in the county jail for a maximum term . . . of not more than one year." RCW 9A.20.021(2); see also RCW 9.92.020 (gross misdemeanor sentence shall be served in county jail). "'[W]here the law provides a place of imprisonment, the court cannot direct a different place, and if it does so the sentence is void.'" State v. Linnemeyer, 54 Wn. App. 767, 770, 776 P.2d 151 (1989) (quoting State v. Christopher, 20 Wn. App. 755, 763, 583 P.2d 638 (1978)). The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, applies to felony convictions only and provides no authority for a defendant who, in a single judgment and sentence, receives a felony sentence in excess of one year and a consecutive gross misdemeanor sentence to serve the misdemeanor portion of the sentence in a DOC facility. State v. Besio, 80 Wn. App. 426, 430-32, 907 P.2d 1220 (1995) (and SRA provisions cited therein). Rather, the consecutive gross misdemeanor sentence must be served in county jail. Id. at 431. The error is correctable by resentencing. Id. at 432; see Christopher, 20 Wn. App. at 763.
Based upon these principles, the DOC requests a remand for resentencing to either remove the confinement time for the misdemeanor counts from the felony judgment and sentence, or to run them concurrently to the felony count. Mr. Doescher likewise requests a concurrent sentence for the gross misdemeanors. The respondent State of Washington (Benton County Prosecutor) concedes under Besio that a remand is necessary to amend the judgment and sentence to reflect that the 60-day consecutive sentence for the gross misdemeanors must be served in county jail.
We agree with the State and reverse the portion of Mr. Doescher's sentence ordering him to serve the gross misdemeanor sentence in the custody of the state. Besio, 80 Wn. App. at 432. The remedy is a remand for entry of an order to specify that incarceration for the gross misdemeanors must be served in a county facility. Id.; see also Linnemeyer, 54 Wn. App. at 770.
In addition, because the trial court ordered that Mr. Doescher receive credit for time served before sentencing but did not specifically assign the credit to either the gross misdemeanor term or the felony term, the court shall also make that determination on remand. See Besio, 80 Wn. App. at 432 n. 1.
Finally, we do not address Mr. Doescher's alternative request that his gross misdemeanor sentence be converted to work crew. That request is not within the court's purview and should be addressed to jail authorities.
Reversed and remanded for further proceedings consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and BROWN, J., concur.