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In re West

January 27, 1997

IN RE THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: SHAWN T. WEST, PETITIONER.


Date first document (petition, etc) was filed in Court of Appeals: 03/15/96.

PER CURIAM. Shawn T. West has filed a personal restraint petition in which he collaterally attacks an Order of Revocation and Suspension of Jail Time entered by the Bothell Municipal Court following a December 5, 1995 probation revocation hearing. He also challenges his conviction at that same hearing of an October 24, 1995 protection order violation charge. With the exception of two issues on which the City of Bothell concedes error, West's contentions are without merit. The City concedes and we agree that West was (1) denied his right to a trial on the charge of violating the protection order and (2) that West did not receive notice of a protection order that he was convicted of violating. We therefore grant the petition in part. West's conviction on the October 24, 1995 protection order violation charge (Cause No. 001578BC) is reversed. We also reverse, in part, the December 5, 1995 Order of Revocation as it relates to Cause No. 0001152BC.

FACTS

West's Suspended Sentences

On January 31, 1995, the City of Bothell charged West with DUI and Hit and Run Unattended under Cause No. 000112BC. The Hit and Run charge was dismissed as part of a plea agreement. The DUI was resolved by a stipulated trial. The court sentenced West to 365 days in jail with 275 days suspended. He was also fined $5000 with $4250 suspended. The remaining jail time and fine were suspended for 24 months on the condition that West have no law violations and that he not use alcohol.

On May 15, 1995, the City charged West with violation of a protective order under Cause No. 001152BC. After a stipulated trial, West was sentenced to 365 days in jail with 348 days suspended, and a $5000 fine with $5000 suspended. He was given 17 days credit for time served. The remaining jail time and fine were suspended for 24 months on condition that West have no law violations and that he not use alcohol during the 24 month period.

On July 16, 1995, West was charged with violating a protection order and second degree vehicle prowl under Cause No. 0000840BV. After a stipulated trial, the court sentenced West to 90 days in jail for violating the protection order with all of the fine suspended. He was given 90 days credit for time served. The court sentenced West to 365 days in jail with 365 days suspended and fined him $5000 with $4900 suspended on the vehicle prowl conviction. The rest of the fine was suspended for 24 months on condition that West have no law violations and no contact with the victim. The City also agreed not to file additional charges for protection order violations that occurred before September 12, 1995.

On June 25, 1995, West was again charged with violating the protection order under Cause No. 0001253BC. Because of the City's earlier agreement, this charge was dismissed. On October 24, 1995, West was charged with violating the protection order under Cause No. 0001578BC. The court set a probation revocation hearing.

The Revocation Hearing

The basis for the probation revocation hearing was the alleged October 24, 1995 protection order violation and West's arrest in Lynnwood for being drunk in public. At the December 5, 1995 hearing, the court found that he had violated his conditions of probation and revoked the remaining 275 days on the DUI (Cause No. 000112BC), the 365 days on the vehicle prowl (Cause No. 000840BC), and the 73 days on the May 15, 1995 protection order violation (Cause No. 0001152BC). It also found West guilty of the alleged October 24, 1995 protection order violation and imposed a 365 day sentence.

DECISION

Because we hold that none of West's claims have merit except for the two on which the City concedes error, we address only those claims. West asserts that he was denied a right to trial because the trial court adjudicated the October 24, 1995 protection order violation charge at the probation revocation hearing without affording him the protections of a criminal trial.

The City concedes that West was never arraigned on the charge, that he did not enter a plea, and that he was not provided an opportunity for trial. The City also concedes that in light of these facts, the trial court did not have the authority to sentence West on the charge. The City's concession is well-taken. The record reflects that West was convicted of the alleged October 24, 1995 protection order violation without a trial. A probation revocation hearing is not equivalent to a criminal trial. *fn1 Because West was denied his right to trial, we reverse and remand the conviction under Cause No. 001578BC. *fn2

West also asserts that his due process rights were violated because he did not receive notice of two of the protection orders that he was convicted of violating. The City concedes that it is unable to locate a copy of the proof of service relating to West's May 15, 1995 protection order violation conviction (Cause No. 0001152BC). *fn3 As a result, the City stipulates that "73 days should be removed from Petitioner's remaining jail time." In light of the City's concession, ...


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