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State v. Simile

Court of Appeals of Alaska

February 8, 2019

STATE OF ALASKA, Petitioner,
v.
JEREMY D. SIMILE, Respondent.

          Petition for Review from the Superior Court No. 3PA-10-273 CR, First Judicial District, Juneau, Amy Mead, Judge.

          Bailey J. Woolfstead, Assistant District Attorney, Juneau, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.

          Frank Singh JJI, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.

          Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

          OPINION

          MANNHEIMER JUDGE.

         The State of Alaska has petitioned us to clarify the provisions of newly amended AS 12.55.110 - the statute that governs a court's sentencing authority over defendants who receive a wholly or partially suspended sentence and are placed on probation, if the court later finds that the defendant violated their probation.

         In 2016, the legislature amended this statute, placing new limits on the amount of suspended jail time that a court can impose when the court revokes a defendant's probation. See SLA 2016, ch. 36, § 84 (effective January 1, 2017).

         Under the new version of AS 12.55.110, some violations of probation are now classified as "technical violations". This term, which is defined in subsection (h)(2) of the statute, refers to any violation of probation that neither constitutes a new criminal offense nor a failure to complete treatment for sex offenders or batterers.

         Subsections (c) and (d) of AS 12.55.110 now limit a court's sentencing authority in instances where a defendant has committed only a technical violation of probation. These two provisions of the statute draw a distinction between (1) technical violations of probation that qualify as "absconding" and (2) all other technical violations of probation.

         We have placed the word "absconding" in quotation marks because subsection (h)(1) of AS 12.55.110 defines this word in a non-standard way. As defined in subsection (h)(1), a probationer "absconds" if the probationer fails to report to a probation officer within five working days after their release from custody upon their completion of an active term of imprisonment, or if the probationer fails to attend a scheduled meeting with a probation officer and then fails to make contact with the probation officer within 30 days following the missed meeting.

         Subsection (d) of AS 12.55.110 declares that if the defendant's technical violation of probation is an act of "absconding", then the court may not impose more than 30 days of the defendant's suspended jail time.

         Subsection (c) of AS 12.55.110 declares that court's sentencing authority is even more circumscribed if the defendant's probation is revoked for a technical violation that does not include "absconding". For these less serious technical violations, the sentencing court can impose no more than:

(1) three days' imprisonment for a first probation revocation;
(2) five days' imprisonment for the second probation ...

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