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Triplett v. State

Court of Appeals of Alaska

December 19, 2008

James S. TRIPLETT, Appellant,
v.
STATE of Alaska, Appellee.

Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

John K. Bodick, Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

BOLGER, Judge.

The parole board released James S. Triplett to residential treatment as a condition of his discretionary parole while he was serving the initial portion of his sentence of 4 years' imprisonment with 2 years suspended for felony driving while intoxicated. He now argues that under this court's decision in Nygren v. State, [1] he is entitled to credit for the time spent in residential treatment against the suspended sentence that the superior court imposed when it later revoked his probation. But our decision in Nygren is based on AS 12.55.025(c), which guarantees credit for time served " pending trial, sentencing, or appeal." Triplett's residential treatment on parole, therefore, does not qualify for credit under this statute.

Facts and proceedings

On August 16, 2002, Superior Court Judge Beverly W. Cutler sentenced Triplett to 4 years' imprisonment with 2 years suspended for felony driving while intoxicated.[2] The conditions of Triplett's probation required him to complete a substance abuse program at the direction of his probation officer, including residential treatment of up to one year.

Page 1180

Triplett reported to prison to serve the initial 2 years of his sentence. Then the parole board granted Triplett discretionary parole release to the Salvation Army Adult Rehabilitation Program. Triplett completed 168 days in the program. Triplett was also subject to probation supervision while he was in residential treatment.

Triplett continued on probation after he completed his parole. He committed probation violations in May 2005 and March 2006, which resulted in short jail sentences. Then, in July 2006, Triplett violated his probation again by consuming alcoholic beverages. On September 15, 2006, Superior Court Judge Eric A. Aarseth revoked Triplett's probation and imposed the balance of his suspended sentence.

After his probation was revoked, Triplett filed a motion requesting Nygren credit for the time he spent in residential treatment. Judge Aarseth eventually ruled that Nygren did not apply in Triplett's case because the parole board, and not the superior court, had ordered Triplett into residential treatment. Triplett now appeals to this court.

Triplett is not entitled to receive credit under Nygren for time that was not served pending his trial, sentencing, or appeal

Alaska Statute 12.55.025(c) requires a sentencing judge to give a defendant " credit for time spent in custody pending trial, sentencing, or appeal." The interpretation of this statute is a legal issue that we review de novo.[3]

In Lock v. State,[4] the Alaska Supreme Court concluded that, for purposes of this statute, " time spent in custody" includes time spent in residential treatment as a condition of an order suspending the imposition of sentence.[5] Then, in Nygren, this court held that a defendant is similarly entitled to credit for time spent in residential treatment while released on bail, as long as the ...


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