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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
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Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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On 1-4-1982 (at age 18), I was charged with murder in the 1st

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On 1-4-1982 (at age 18), I was charged with murder in the 1st degree in Alaska, AS 11.41.100(a)(1) and AS 11.16.110(2)(B). I was eventually sentenced to 60-years with 20-years suspended for 5-years. On 2-20-2002, I was paroled to Utah (my home state) under Interstate Compact. On 8-18-2005, an ex-girlfriend said that I beat her up; I honestly did not. Still, I plead on advice of counsel to 2 counts of Disorderly Conduct, 76-9-102, one which was amended to “in presence of a minor domestic violence”, both Class C Misdemeanors, and sentenced to 50-days, time served. Alaska brought me back. The Alaska Parole Board took the 3-1/2-years I had done, and started me over in January, 2006. On April 11, 2012, I successfully completed my parole. The Superior Court, on March 10, 2006, sentenced me for my Probation Violation to 6-months, time served. “The defendant is thereafter readmitted to probation according to all the terms and conditions as previously imposed…and reside at a CRC for up to 6-months.” On March 19, 2013, I filed a motion to dismiss probation due to ex post facto violation, specifically regarding that there is no provision which allows for Defendant’s readmission to Probation, which is deemed to end on 1-5-2027, or 5-6-2027, depending on who is asked. AS 33.05.070(b)[October, 1975]: “As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. (Section 5 ch 105 SLA 1960).” The prosecution answered today: ”Defendant seems to be arguing that pursuant to AS 33.05.070(b) that once the court found a violation of his probation and imposed 6 months of his suspended time (of which he had 20 years), then the court could not then re admit him to probation. The citing of this statute does not support his argument. Once a violation of probation is imposed, the defendant’s probation is tolled until the disposition. The court is empowered to impose any portion of the suspended sentence and then re admit the defendant to serve the remainder of his probationary term. See AS. 12.55.085.” When I looked at the prosecutor’s statute, AS 12.55.085(f) states: The court may not suspend the imposition of sentence of a person who (1) is convicted of a violation of AS 11.41.100 (Murder in the 1st Degree). Any clarification or guidance would be deeply appreciated. I just want to get on with my life. Thank You.

 

See: Lamkin v. State, 244 P.3d 540 (2010), deals with AS 12.55.085(f).

Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Probation is part of a sentencing as well. If you received probation as part of your sentence and you allegedly violated that probation, your probation is not ended unless the court states in the order that probation is terminated. The statute the prosecutor stated means that you have to have a sentence for murder and that sentence cannot be suspended and probation is not a suspension of any sentence since you have to follow terms and conditions and rules while on probation and it is considered a part of a sentence. In fact, probation is considered and often called an "alternative sentence." Thus, the DA is correct and since a sentence my not be suspended, your probation cannot be suspended.




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Customer: replied 1 year ago.


Thank you for your answer.


 


I agree with you and my prosecutor that my probation could not have been suspended. How then was my original sentence suspended (60-years with 20-years suspended for 5-years), using these same rules?


 


And, can you help me understand this original sentence?


 


Thank you again.


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Your probation was stayed during the time you did in jail for the probation violation. It was not suspended, it was just placed on hold because probation does not run while you are in jail. The entire sentence you received was not suspended, which would violate the statute, only some of the sentence was suspended and you served a portion and probation was substituted in lieu of the suspended portion of your sentence. This is what made your sentence possible and within the law.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 88667
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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