STATE v. GRAGG, 146 Wn. App. 1027 (2008)

No. 36658-4-II.The Court of Appeals of Washington, Division Two.
August 5, 2008.

Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00022-7, F. Mark McCauley, J., entered July 30, 2007.

Remanded by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.

HUNT, J.

Jodie Gragg appeals his judgment and sentence, which imposed 24 months of probation following 365 days in jail for his first degree driving while license suspended or revoked gross misdemeanor conviction. He argues that the trial court exceeded its statutory authority when it sentenced him to the maximum jail sentence without suspending any of this time followed by two years of probation. The State concedes this error.

Accepting the State’s concession, we remand to the trial court for correction of Gragg’s judgment and sentence.

Facts
Having waived his right to a jury trial, the superior court found Gragg guilty of first degree driving while license suspended or revoked. The court sentenced Gragg to 365 days in jail, without suspending any of the time, followed by 24 months of probation. Gragg appeals his sentence.

Analysis
Gragg argues that the trial court exceeded its statutory authority when it sentenced him to the maximum jail sentence without suspending any of this time followed by two years of probation. The State concedes this error.

A trial court commits reversible error when it exceeds its sentencing authority. In re Pers. Restraint of West, 154 Wn.2d 204, 211, 110 P.3d 1122 (2005). A trial court must act within the limits of the sentencing statutes when setting probationary conditions. State v. Farmer, 39 Wn.2d 675, 679, 237 P.2d 734 (1951); State ex rel. Schock v. Barnett, 42 Wn.2d 929, 931-32, 259 P.2d 404 (1953). The court’s imposition of sentence, including probation, is void if the court does not follow the statutory provisions. Id.

RCW 9.95.210(1) sets the parameters for the sentencing court’s imposition of probation conditions:

In granting probation, the superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.

Division One of our court held that where the sentencing court imposes a maximum term of confinement, RCW 9.95.210 does not allow the sentencing court to impose probation without suspending at least some of the confinement. State v. Gailus, 136 Wn. App. 191, 201, 147 P.3d 1300 (2006).

The maximum penalty for Gragg’s first degree driving while license suspended or revoked conviction, a gross misdemeanor, is 365 days in jail and a $5,000 fine. RCW 46.20.342(1)(a). Thus, under RCW 9.95.210(1), if the sentencing court wanted to confine Gragg for the full 365 days, it had no authority to impose and probation to follow his release. If, however, the sentencing court wanted to impose a two-year period of probation, it could do so only if it suspended the entire 365-day jail term: RCW 9.95.210(1) allows up to a two-year maximum total punishment when a suspended jail term and probationary period are combined.

Here, the trial court’s sentencing Gragg to 365 days in jail, unsuspended, followed by two years probation exceeded this two-year statutory maximum by one year. Thus, the trial court exceeded its sentencing authority under RCW 9.95.210(1).

Accepting the State’s concession of error, we remand to the trial court to correct Gragg’s judgment and sentence.

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.

HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.

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