DALE G. STARKEY, Petitioner,
STATE OF ALASKA, Respondent.
for Review from the Superior Court, Fourth Judicial District,
Trial Court No. 4FA-08-2424 CR Fairbanks, Paul R. Lyle,
John, Law Office of Robert John, Fairbanks, for the
Michael Gray, District Attorney, Fairbanks, and Michael C.
Geraghty, Attorney General, Juneau, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge. [*]
petition for interlocutory review, we are asked to decide
whether the superior court violated due process and the
prohibition against double jeopardy when it rescinded a prior
court order erroneously discharging a defendant from
probation and setting aside his conviction. For the reasons
explained here, we conclude that the court had the authority
to rescind its plainly erroneous discharge and set-aside
background and prior proceedings
a bench trial, Dale G. Starkey was convicted of fourth-degree
misconduct involving a controlled substance for possessing 25
or more marijuana plants. At sentencing, the superior court
granted Starkey a suspended imposition of sentence (SIS) and
placed him on supervised probation for two
subsequently appealed his conviction, which automatically
stayed his probation under Alaska Appellate Rule
206(a)(3). This appellate rule provides that
"[a]n order placing the defendant on probation
shall be stayed if an appeal is taken and the
defendant received a suspended imposition of
sentence." Under this rule, the court can order the
probation to commence notwithstanding the pendency of the
appeal but only at the defendant's request.
did not request that his probation begin during the pendency
of his appeal and his probation therefore remained stayed as
a matter of law until his appeal became final.
this stay, Starkey apparently served five months on
supervised felony probation because the probation department
did not initially realize that Starkey had appealed his
conviction and that his probation was therefore automatically
stayed. Once the probation department recognized its mistake,
however, Starkey's time on supervised probation ended and
the stay continued - leaving the majority of Starkey's
probation time still unserved.)
years into the pendency of Starkey's appeal, while
Starkey's probation remained stayed under Appellate Rule
206(a)(3), the superior court issued a notice to the parties
under the mistaken belief that Starkey had continued to serve
his probation during the pendency of his appeal and his
probationary term was therefore close to
expiring.The court's notice incorrectly stated
that Starkey's probation "was about to expire,
" and also specifically warned the District
Attorney's Office and the Department of Corrections that,
30 days after Starkey's probation expired, the court
would issue an order discharging Starkey from probation and
setting aside his conviction - unless the State
"show[ed] cause why the discharge date should be
postponed or unless a petition to revoke probation is
the District Attorney's Office nor the Department of
Corrections responded to the court's erroneous notice.
March 2012, this Court issued its decision affirming
Starkey's conviction. Following our decision, Starkey
petitioned for hearing to the Alaska Supreme Court, which
denied the petition on July 9, 2012.
point, Starkey's appeal was final, the automatic stay
under Appellate Rule 206(a)(3) was lifted, and Starkey's
probation should have begun. But this is not what happened.
Instead, based on its mistaken belief that Starkey had long
since successfully served his full term of probation, the
superior court issued an order mistakenly discharging Starkey
from his probation and setting aside his conviction.
court's order stated (erroneously):
The period of probation has expired without the court
imposing sentence and defendant is entitled to be discharged
under the provisions of AS 12.55.085(d) and Criminal Rule
IT IS ORDERED that the case is closed and the defendant is
discharged by the court without imposition of sentence.
IT IS FURTHER ORDERED that Judgment of conviction is hereby
set aside, and that a copy of this Order shall serve as
defendant's certificate pursuant to AS 12.55.085(e).
order was distributed to the parties on August 7, 2012. The
State did not timely object to the order as erroneous; nor
did the State appeal the order.
month later, on September 11, 2012, Starkey was arrested for
an unrelated misdemeanor assault charge. Following
Starkey's arrest, the State filed a petition to revoke
Starkey's probation, arguing that the court's
discharge and set-aside order was issued erroneously and was
therefore without any legal effect. The State's petition
further alleged that Starkey had violated his probation by(1)
committing the new misdemeanor assault; and (2) failing to
report to his probation from"March to September
moved to dismiss the State's petition to revoke his
probation, arguing that jeopardy had already attached to the
court's discharge and set-aside order. Starkey also
argued that it would violate due process to allow the
petition to revoke probation to proceed given the State's
failure to timely object to the court's order.
superior court denied Starkey's motion to dismiss.
Relying on this Court's decision in Champion v.
State,  the superior court ruled that the
discharge and set-aside order was void ab initio
(void "from the beginning") because the court
lacked the statutory authority to grant Starkey a mandatory
discharge from his probation before he had actually completed
his probation. Based on this reasoning, the court vacated the
prior order, reinstated Starkey's original SIS, and
scheduled a hearing to address the underlying merits of the
State's petition to revoke Starkey's probation.
petitioned this court for interlocutory relief. At the
direction of the Alaska Supreme Court, we granted the
petition and ordered supplemental briefing.
the protections against double jeopardy attach to the
AS 12.55.085(a), a court may suspend imposition of sentence
for certain crimes when there are circumstances in mitigation
or the ends of justice will otherwise be served by the
suspension. When the court imposes an SIS, the court must
place the defendant on probation "for a period of time,
not exceeding the maximum term of sentence that may be
imposed or a period of one year, whichever is
defendant later violates the terms of his probation, the
court has the discretionary authority under AS 12.55.085(c)
to revoke the defendant's probation and to impose a
regular criminal sentence. If, however, the defendant
successfully completes his full term of probation without
imposition of sentence, the defendant is then entitled to a