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In Washington, is a dismissed conviction the same as a vacated conviction?

Posted by Brian C. Zuanich | Jun 09, 2019 | 0 Comments

When people make mistakes but turn their life around, we tend to forgive, even if we don't forget. It's a natural human emotion.

This overused cliché has embedded itself into Washington's criminal justice system in the way that we treat felony offenders and their criminal history.

As I've discussed earlier, felony sentencing depends primarily on two factors: (1) a defendant's offender score; and (2) the seriousness of the current offense. A prior felony conviction, for example, counts as one point toward the offender score.

However, in some cases, certain prior class C felonies (i.e. felonies that carry a maximum of five years in state prison) are excluded from a defendant's  offender score. This happens if a defendant has spent at least five crime-free years in the community. More precisely, as set forth in the Sentencing Reform Act (SRA), a defendant must have “spent five consecutive years in the community [since getting released from jail for the previous felony] without committing any crime that subsequently results in a conviction.”

We lawyers and judges call this—colorfully—the “wash out” provision of the SRA, because we treat the prior felonies as if they had never happened (washed away).

David Haggard was looking to cash in the “wash out” provision, but he fell just short. Here's why.

Haggard had three prior class C felonies in California. For the last felony, he got out of jail in May 2008. In June 2016—over eight years later—the State of Washingt charged Haggard with arson and burglary. The trial court later found him guilty of both crimes.

At sentencing, Haggard argued that his prior felonies washed out because he spent eight consecutive crime-free years in the community.

Actually, no they didn't, the State argued.

In 2010, Haggard pleaded guilty to disorderly conduct Snohomish County District Court. He received a deferred sentence. Unlike a standard guilty finding, a deferred sentence can turn into a dismissal if the defendant complies with probation. Haggard complied with probation and the court dismissed his case after one year.

Yes, they did, Haggard responded. The disorderly conduct case ultimately got dismissed, so he did not commit a crime that subsequently resulted in a conviction.

Sorry, but you actually did, the trial judge decided, and sentenced Haggard accordingly.

Haggard appealed, but the Court of Appeals agreed with the trial judge.

To reach its conclusion in State v. Haggard, the Court compared two different types of criminal procedures in Washington—the “vacating a conviction” procedure and the “deferred sentence” procedure.

Under RCW 9.96.060, a defendant who jumps through many hoops can move the original sentencing court to vacate an earlier misdemeanor conviction—like disorderly conduct, for instance. The benefit of getting a conviction vacated is that the vacated offense “shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction.

In short, a vacated conviction doesn't count toward the felony offender score. It's as if the conviction simply vanished and never happened.

A dismissed conviction, on the other hand, did in fact happen. Haggard did in fact plead guilty to a crime—in other words, he “committed” a crime that subsequently resulted in a “conviction.” It just so happens that subsequent to the conviction the case got dismissed.

And unlike the vacation statute, nothing in the deferred sentence statute (RCW 3.66.067), the Court wrote, “implies that a conviction is automatically deleted or expunged from the criminal record after a dismissal.”

Therefore, a dismissed conviction is not the same as a vacated conviction. Haggard's dismissed 2010 conviction for disorderly conduct interrupted the wash out period for his prior California class C felonies.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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