The City of Spokane, Petitioner, v. Del Donnie Marquette, Respondent, 146 Wash. 2d 124

Owens, J. — Del Donnie Marquette pleaded guilty to reckless driving in Spokane Municipal Court, in violation of Spokane Municipal Code (SMC) 16.61.500. The court suspended Marquette’s jail sentence and placed him on probation. Courts of limited jurisdiction retain subject matter jurisdiction to defer or suspend a sentence for two years after a conviction. Marquette repeatedly violated the terms of probation, and eventually the court imposed the jail sentence, but not until more than two years had elapsed from the date of his conviction.

Marquette therefore contends that the municipal court’s jurisdiction had expired when it imposed his sentence. However, we agree with the city that for three periods during which Marquette was sought on bench warrants for failing to comply with court orders, the two-year jurisdictional time limit was tolled. We hold that the municipal court did have jurisdiction when it imposed the sentence. FACTS Marquette’s guilty plea was part of a plea agreement to the charge of driving under the influence of alcohol (DUI). See SMC 16.61.502. The plea was entered on February 22, 1996.

The municipal court fined him $685 and sentenced him to 365 days in jail, with 364 days suspended for 24 months of probation. Marquette’s probation was conditioned on his completing alcohol treatment, attending a DUI victim panel, and committing no crimes. Marquette attended the victim panel on July 18, 1996, and eventually paid the fine on March 23, 1998. Otherwise his probation was less than successful. Marquette did not arrange to serve the one day of his sentence that was not suspended. The court issued a bench warrant for his arrest on March 5,1996.

Marquette also did not arrange to undergo alcohol treatment. The court issued another bench warrant in June. Both warrants were served on June 20, 1996. The court held a show cause hearing at which Marquette’s suspended sentence was reinstated, with credit for 5 days served and 359 days suspended. A year later Marquette allegedly violated his probation again. The court set a show cause hearing for August 15, 1997. Marquette failed to appear, and the court issued a bench warrant on August 19,1997. The warrant was served on October 23, 1997.

When Marquette was arrested in October, the court set a new show cause hearing for November 1997. However, due to several continuances, the hearing was not held until April 15, 1998. This was more than two years after the February 1996 conviction. By the April 15 hearing, Marquette had allegedly violated his probation three times, and he had failed to appear in court once. Spokane Municipal Court Judge Christine Cary recognized that the court’s jurisdiction was nearly expired. At the hearing the prosecutor asserted that about five month’s worth of probationary jurisdiction had been tolled.

Significantly, defense counsel agreed. Clerk’s Papers (CP) at 93-94. Still defense counsel argued that Marquette had been able to stay out of trouble for a while, and asked for the “court’s indulgence just one last time.” CP at 96. The court reinstated Marquette’s suspended sentence and probation, and set a show cause hearing for July 8,1998 so that the court could monitor his compliance. Marquette failed to appear on the 8th and a bench warrant was issued on July 14. This warrant was served on July 22, 1998. The court held a show cause hearing on July 29, 1998. Marquette was not represented at this hearing.

Judge Cary imposed the remainder of Marquette’s sentence. In the hearing, Judge Cary thoroughly explained her reasoning to Marquette. Essentially she informed him that he had run out of chances. In reference to the April 15 hearing she said: Then, I very specifically had a show cause, put you back on probation, probably listened to all of the story that you have, told you to get in touch with Probation, and that I would review this. You had one chance, July 8th, and you didn’t appear for court, and a warrant issued. It was set for today because the jurisdictional period runs on August first.

CP at 119 (emphasis added). Later Judge Cary explained that she believed the jurisdictional period terminated on August 1 because the period was tolled while the defendant was on warrant status. The Spokane County Superior Court issued a writ of habeas corpus ordering immediate release, and remanded Marquette’s case to the municipal court, because he had not been represented at the July 29, 1998 hearing. On remand the municipal court found that its jurisdiction had been tolled while Marquette was on warrant status and imposed the jail sentence again.

The superior court affirmed, the Court of Appeals reversed, and we granted review. The transcripts of the hearings held on April 15,1998 and July 29, 1998 show that the city, defense counsel, and the municipal court were all aware that probationary jurisdiction was about to end, and that it was the municipal court’s fear of just this that prompted it finally to revoke probation. The only issue we must address is whether the July 29 hearing was within the period of the court’s probationary jurisdiction. Marquette basically contends that the one last chance he got on April 15 was one too many.

The parties agree that the municipal court had jurisdiction to punish Marquette for not complying with the terms of probation on April 15, 1998, since that hearing had been continued from a date within the two-year period. But Marquette asserts that the court did not have jurisdiction to impose further probation, since the two-year period had already run. Marquette argues that when the court did not punish him, but instead purported to reinstate probation, it lost its subject matter jurisdiction. The city counters that the two-year period was tolled while Marquette was on warrant status.

Three periods during which Marquette was sought on bench warrants are relevant: (1) 107 days, from March 5, 1996 to June 20, 1996, for not reporting to jail; (2) 65 days, from August 17, 1997 to October 23, 1997, for failing to appear at the August 15, 1997 show cause hearing; and (3) 8 days, from July 14,1998 to July 22,1998, for failing to appear at the July 8, 1998 show cause hearing. If Marquette’s “two-year” probationary term and the municipal court’s jurisdiction were tolled during these periods, they would not have ended until 180 days after February 22, 1998, on August 21, 1998.

ISSUE Is a municipal court’s two-year probationary jurisdiction tolled while a probationer is on warrant status? ANALYSIS Jurisdiction is a question of law we review de novo. Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999). Washington’s courts of limited jurisdiction are created and governed by the legislature. See Const, art. IV, §§ 1, 12; Young v. Konz, 91 Wn.2d 532, 540-42, 588 P.2d 1360 (1979). Therefore, a municipal court’s jurisdiction must be granted by statute. Neither superior courts nor inferior courts have inherent authority, however, to suspend or defer a sentence. State v.

Bird, 95 Wn.2d 83, 85, 622 P.2d 1262 (1980). Our analysis turns on the Spokane Municipal Court’s statutory power to suspend Marquette’s sentence. There are four grants of probation power to Washington trial courts. RCW 9.95.210 and RCW 9.95.230 apply to the superior courts, and give them the power to grant probation for the longer of two years or the statutory maximum sentence for the defendant’s crime, as well as the power to modify or revoke probation. RCW 35.20.255 applies to the municipal courts of Washington cities with population over 400,000.

Cities with population under 400,000, and we take judicial notice that Spokane is one, may secure a municipal department of the district court under

chapter 3.46 RCW, or elect to create a municipal court under

chapter 3.50 RCW. Thus most municipal courts derive their probation powers from either RCW 3.66.067-.069 (district courts) or RCW 3.50.320-.340 (municipal courts—alternate provision); the relevant statutory language is the same in either case.

The Court of Appeals decision in this case prompted the legislature to add the following language to the statutory provisions applicable to courts of limited jurisdiction: A defendant who has been sentenced, or whose sentence has been deferred, and who then fails to appear for any hearing to address the defendant’s compliance with the terms of probation when ordered to do so by the court, shall have the term of probation tolled until such time as the defendant makes his or her presence known to the court on the record. Laws of 2001, Reg. Sess., ch. 94, §§ 1-5. This amendment would be relevant if it applied.

But the city does not assert that this amendment should be applied retroactively, so it does not affect Marquette’s case. We therefore turn to the statutory language applicable to Marquette. Because the Spokane Municipal Court was created as a department of the district court, SMC 5.01.010, we turn to

chapter 3.66 RCW for the source of its probationary jurisdiction: For a period not to exceed two years after imposition of sentence, the court has continuing jurisdiction and authority to suspend the execution of all or any part of its sentence upon stated terms,.... Former RCW 3.66.068 (1983) (emphasis added). The statute limits the court’s probation power to two years, but judicial construction has permitted tolling in certain situations. The general principle is that the running of the probationary period is tolled while the probationer is not subject to the jurisdiction of the court. See State v.

Campbell, 95 Wn.2d 954, 957, 632 P.2d 517 (1981). By not counting time during which the probationer is not actually supervised, this rule ensures that the municipal court has two years of actual supervision to rehabilitate the probationer. Courts must give fall effect to legislative enactments, and that means in this situation preserving the municipal court’s two years. This rule is usually applied to a probationer who leaves Washington. In State v. Haugen, 22 Wn. App. 785, 591 P.2d 1218 (1979), the defendant was placed on probation for three years on the condition that he serve six months in jail.

Without serving his sentence, the defendant fled to California. Five years later the defendant returned to Washington, and his probation was revoked. The Court of Appeals held that the three-year probation period was tolled while the defendant was out of the state. Id. at 787-88; see also State v. Frazier, 20 Wn. App. 332, 334, 579 P.2d 1357 (1978) (flight to Texas). Probation also tolls while the defendant is committed to a mental institution, Campbell, 95 Wn.2d at 957, and on appeal, State v. Mahoney, 36 Wn. App. 499, 502, 675 P.2d 628 (1984). More like the case at bar is Gillespie v. State, 17 Wn.

App. 363, 563 P.2d 1272 (1977). In Gillespie, the defendant was sentenced to three years’ probation in 1972. However, he soon disappeared, and a bench warrant was issued on September 11, 1972. He was arrested two years later, on September 15, 1974. The defendant was released, but was absent from Washington for the rest of 1974. Upon return he again failed to report to probation authorities. The court held that the probation period was tolled for the entire time the defendant was on warrant status, even though there was no indication that he had in fact left Washington between 1972 and 1974.

Id. at 366-67. (The dissent ignores this when it cites Gillespie for the proposition that flight tolls jurisdiction.) The court reasoned that the purpose of probation was to rehabilitate the defendant, but that this purpose is frustrated when the defendant eludes the court’s supervision. To hold the reverse would permit the defendant to avoid the conditions of probation altogether. These cases deal with superior courts, but the principle is the same in municipal court, so we find them persuasive.

Since even superior courts do not have inherent power to suspend a sentence, their probationary jurisdiction is also limited to that provided by statute. The dissent’s emphasis on the constitutional difference between superior and district courts misses the mark. The similarity of the probation statutes calls for consistent analysis by the court. We therefore hold that the municipal court’s probationary jurisdiction is tolled while a probationer is on warrant status.

The defendant must comply with the conditions a court places on probation, and the court’s power to punish the defendant for noncompliance is not impaired by the defendant’s lack of cooperation. During all three periods at issue, Marquette’s conduct had the effect of removing him from supervision. When he did not report to jail, Marquette violated an express condition of probation, and the court was entitled to address the violation. For the 107 days that passed between the ripening of the violation and Marquette’s arrest, the court was waiting to proceed, but could not.

Similarly, for the periods of 65 and 8 days during which he was on warrant status for not appearing at show cause hearings, the court was waiting on Marquette. In all three cases Marquette’s default caused the delay; in all three cases the court’s probationary jurisdiction was therefore tolled. We note that aside from his failures to appear, there is no evidence that Marquette hid from the authorities. It is enough that he did not appear when ordered to appear. We also note, however, that there is no evidence that the police failed to exercise due diligence in serving the bench warrants.

If this were the case, our opinion could very well be different. Tolling is triggered only by the defendant’s default. Thus we are not licensing administrative inertia in the municipal courts as amicus Washington Association of Criminal Defense Attorneys argues. Instead we recognize that a probationer has a duty to cooperate in his rehabilitation in exchange for the privilege of being relieved from jail time. Both parties rely on federal precedent. The federal position was reduced to a general rule in United States v.

Workman, 617 F.2d 48, 51 (4th Cir. 1980), when the court stated, “a probationer can not obtain credit against the [probationary] period for any period of time during which he was not, in fact, under probationary supervision by virtue of his own wrongful act.” See also United States v. Martin, 786 F.2d 974 (10th Cir. 1986); Nicholas v. United States, 527 F.2d 1160, 1162 (9th Cir. 1976). Thus under federal law also a probationer’s time is tolled while in jail on another charge or outside the court’s jurisdiction. Marquette attempts to distinguish these federal cases on the basis of the federal probation statute.

Unlike Washington’s statutes, former 18 U.S.C. § 3651, repealed by Pub. L. No. 98-473, 98 Stat. 1987 (1984), stated that “The period of probation, together with any extension thereof, shall not exceed five years” (emphasis added). Under federal

interpretation, tolling of the probationary period was deemed an extension of the five years. Nicholas, 527 F.2d at 1162. However, Marquette misstates the rationale of Nicholas and other federal cases holding that the probationary period may be tolled. Again the purpose of the rule is to prevent a probationer from avoiding the responsibilities of probation by eluding the supervising court’s jurisdiction. A court will not enforce the literal words of a statute to the point of absurdity. It would be absurd to allow a probationer unilaterally to undermine a court’s statutory authority.

We do not find the federal authorities cited to be based on the minutiae of statutory construction, but on common sense. We also note that in the Comprehensive Crime Control Act of 1984 Congress decided the issue against Marquette’s position. 18 U.S.C. § 3565(c) (1994) extends a federal court’s power to revoke probation and impose another sentence beyond the original probationary term for any period of time “reasonably necessary” to adjudicate violations occurring before probation expired. Marquette’s reliance on federal law is unavailing.

CONCLUSION The probationary period is tolled while a probationer is sought on a warrant. Washington case law establishes that a probationer’s term of probation is tolled for any period in which the probationer is not actually under the court’s supervision. Such a probationer does not divest the court of limited jurisdiction to enforce compliance with the terms of probation. Federal authorities likewise state that a probationer does not receive credit for time during which he or she is not actually under the court’s supervision by virtue of his or her own wrongful act.

Washington and federal courts are therefore unanimous in holding that a probationer may not avoid the terms of probation by ignoring the court’s authority. The first bench warrant the municipal court issued was for Marquette’s failure to serve his one-day jail sentence. Because he did not report to jail as ordered, Marquette was out of compliance with the terms of probation. Until that warrant was served, the court was not able to supervise him, and so his probationary term was tolled.

Similarly, Marquette’s failures to appear at show cause hearings clearly thwarted the court’s supervisory powers; in these cases too we find that the probationary term was tolled. We reverse the Court of Appeals and reinstate Marquette’s sentence. Smith, Madsen, Ireland, Bridge, and Chambers, JJ., concur.