No. 29920-8-IIThe Court of Appeals of Washington, Division Two.
Filed: May 13, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County Docket No: 99-1-00565-6 Judgment or order under review Date filed: 01/10/2003
Counsel for Appellant(s), David William Brown, Enbody Dugaw, 107 S Tower Ave, Centralia, WA 98531-4221.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
BRIDGEWATER, J.
John Allen Booth appeals his sentence, imposed by the Lewis County Superior Court following his convictions of first degree burglary and second degree assault. He contends that the trial court improperly included four juvenile convictions in his offender score. The State concedes error, and we agree.[1]
The trial court originally imposed sentence on August 9, 1999, and modified the sentence on April 30, 2001. Booth appealed, contending, inter alia, that three juvenile convictions should have been treated as the same criminal conduct. This court affirmed his conviction, but remanded so that the trial court could make a determination with regard to the sentencing issue. The trial court ruled that the offenses were not the same criminal conduct and also refused to modify the sentence pursuant to State v. Smith, 144 Wn.2d 665, 30 P.3d 1245, 39 P.3d 294
(2001). This appeal followed.
Before July 1, 1997, certain juvenile offenses were not included in an offender score if the offenses were committed before the defendant turned 15 or if the current offense was committed after the defendant had reached the age of 23. See Former RCW 9.94A.030(12)(b) (1996), 9.94A.360(4) (1995). The Legislature eliminated these exceptions in 1997.[2]
However, the 1997 amendments do not apply to juvenile offenses that `washed out’ before the effective date of the amendment. Smith, 144 Wn.2d at 670-71. Neither did the 2000 `timing statute,’ RCW 9.94A.345, revive previously washed out juvenile convictions. State v. Dean, 113 Wn. App. 691, 699, 54 P.3d 243 (2002). Booth was born on June 24, 1979. He committed the offenses at issue in 1993, before his 15th birthday. They have washed out, and they cannot be included in his offender score. Booth’s sentence is accordingly vacated and this matter is remanded to the trial court for recalculation of his offender score and resentencing. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER and ARMSTRONG, JJ, concur.