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State v. Brestoff

Court of Appeals of Washington, Division 2

January 4, 2018

STATE OF WASHINGTON, Respondent,
v.
ANTHONY BRESTOFF, Appellant.

          SUTTON, J.

         Anthony Brestoff appeals the juvenile court's denial of his motion to dismiss a charge of possession of less than 40 grams of marijuana while under the age of 21 and the resulting juvenile adjudication. He argues that RCW 13.40.070(3)[1] prohibited the State from charging him with possession of marijuana because the State had already elected to modify his community supervision following his suspension from school based on the same conduct. We agree that because the State had already modified the community supervision based on certain conduct, it could not also charge Brestoff for the same conduct. Accordingly, we reverse the adjudication and remand to the juvenile court to dismiss the charge with prejudice.

         FACTS

         I. April 2015 Adjudication and October 2015 Modification

         In April 2015, Brestoff pleaded guilty in juvenile court to a charge of unlawful possession of marijuana while under the age of 21. The conditions of supervision imposed following the April 2015 adjudication included a requirement that Brestoff "attend school without unexcused absences, tardiness[, ] or disciplinary referrals, " and a requirement that he "refrain from committing new offenses." Clerk's Papers (CP) at 47-48.

         On October 8, while still under supervision, Brestoff was suspended from school. The school's notice of disciplinary action stated that the "reason for the action" was that Brestoff had possessed "marijuana, a vaporizer[, ] and vapes." CP at 55. The notice of disciplinary action further stated that Brestoff had violated the following district rules: "Exceptional Unsafe Misconduct" and "Alcoholic Beverages and Drugs" and that "[t]his [was] the second occurrence of this nature during [Brestoff s] high school career." CP at 55.

         Brestoff s probation officer filed a violation report with the juvenile court. The violation report stated that Brestoff had "violated [the] conditions of [his] supervision by: Fail[ing] to attend school without unexcused absences or disciplinary referrals." CP at 54. Brestoff s probation officer attached a copy of the school district's notice of disciplinary action describing Brestoff s possession of marijuana, a vaporizer, and vapes. The violation report also noted that Brestoff had been ordered to complete drug and alcohol treatment but that he had not finished treatment "due to a relapse he had over the summer." CP at 54. But the report did not state that Brestoff s failure to complete treatment was itself a violation.

         Based on the probation officer's violation report, the State filed a petition to modify Brestoff s community supervision in his April 2015 disposition. At the modification hearing, Brestoff admitted "[t]o the allegation that [he] failed to attend school without unexcused absences disciplinary [sic] rules." CP at 21. The underlying possession violation was not discussed at the modification hearing.[2] The juvenile court imposed four days of detention with credit for one day, extended Brestoff s probation, and required that he obtain a substance abuse evaluation and follow all chemical dependency disposition alternative treatment recommendations.

         II. October 2015 Charge

         In October, shortly after the juvenile court modified Brestoff s April 2015 disposition, the State charged Brestoff with unlawful possession of marijuana while under the age of 21.

         Brestoff moved to dismiss the charge, arguing that under RCW 13.40.070(3) the State was required to choose between modifying his community supervision or filing a criminal charge based on the same conduct, the marijuana possession at school. The State argued that the criminal charge was proper because the modification of community supervision was based on Brestoff s school suspension and was independent of the marijuana possession. The juvenile court denied Brestoff s motion to dismiss. In its memorandum decision, the juvenile court stated that it found that the probation violation was based on the school suspension, regardless of the reason for the suspension.

         Following a stipulated facts bench trial, the juvenile court adjudicated Brestoff guilty of possession of less than 40 grams of marijuana while under the age of 21. The juvenile court imposed 6 months of community supervision and 16 hours of community service. It also ordered Brestoff to comply with a curfew set by his probation officer, to participate in classes recommended by his probation intake, to undergo an alcohol or drug dependency evaluation, to refrain from using illegal drugs or alcohol, to be subject to random testing, and to reside in an approved placement.

         Brestoff appeals the denial of ...


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