Starkey v. State

         Petition for Review from the Superior Court, Fourth Judicial District, Trial Court No. 4FA-08-2424 CR Fairbanks, Paul R. Lyle, Judge.

          Robert John, Law Office of Robert John, Fairbanks, for the Petitioner.

          J. 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. ^[*]

          OPINION

          ALLARD, JUDGE

         In this 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are asked to decide whether the superior court violated due process and the prohibition against double jeopardy when it rescinded a prior court order erroneously discharging a defendant from probation and setting aside his conviction.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 order.

         Factual background and prior proceedings

         Following a bench trial, Dale G. Starkey was convicted of fourth-degree misconduct involving a controlled substance for possessing 25 or more marijuana plants.^[1] At sentencing, the superior court granted Starkey a suspended imposition of sentence (SIS) and placed him on supervised probation for two years.^[2]

         Starkey subsequently appealed his conviction, which automatically stayed his probation under Alaska Appellate Rule 206(a)(3).^[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."^[4] Under this rule, the court can order the probation to commence notwithstanding the pendency of the appeal but only at the defendant's request.^[5]

         Starkey 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.

         (Notwithstanding 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.^[6])

         Two 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.^[7]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 filed."^[8]

         Neither the District Attorney's Office nor the Department of Corrections responded to the court's erroneous notice.

         In March 2012, this Court issued its decision affirming Starkey's conviction.^[9] Following our decision, Starkey petitioned for hearing to the Alaska Supreme Court, which denied the petition on July 9, 2012.^[10]

         At this 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.

         The 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 35.2.

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).

         The 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.

         About a 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 2012."

         Starkey 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.

         The superior court denied Starkey's motion to dismiss. Relying on this Court's decision in Champion v. State, ^[11] 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.

         Starkey petitioned this court for interlocutory relief. At the direction of the Alaska Supreme Court, we granted the petition and ordered supplemental briefing.

         Did the protections against double jeopardy attach to the court's order?

         Under 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 greater."^[12]

         If the 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 ...