Brief Description: Removing certain assaults and robberies from the list of most serious offenses.

Sponsors: Representatives O'Brien, Lovick, Kagi, Kenney, Darneille, Hunt and Simpson.

Hearing Date: 3/5/03

Staff: Yvonne Walker (786-7841).

Background:

Under what is commonly referred to as the "Three Strikes and You're Out" law, a persistent offender is subject to a sentence of life imprisonment without the possibility of parole. A person is considered a "persistent offender" if he or she commits three most serious offenses. A "most serious offense" includes any of the following felonies or a felony attempt to commit any of the following felonies:

•any class A felony;

•assault in the second degree;

•assault of a child in the second degree;

•child molestation in the second degree;

•controlled substance homicide;

•extortion in the first degree;

•incest when committed against a child under age 14;

•indecent liberties;

•kidnapping in the second degree;

•leading organized crime;

•manslaughter in the first degree;

•manslaughter in the second degree;

•promoting prostitution in the first degree;

•rape in the third degree;

•robbery in the second degree;

•sexual exploitation;

•certain vehicular assaults and vehicle homicides;

•any other class B felony offense with a finding of sexual motivation;

•any other felony with a deadly weapon verdict; and

            •    certain indecent liberties convictions.

2nd degree Robbery. The criminal offense of robbery in the second degree is the unlawfully taking of property by use or threat of immediate force, violence, or fear of injury. The offense can increase to robbery in the first degree when: (1) a deadly weapon or firearm is used; (2) the perpetrator inflicts bodily injury upon another; or (3) the offense is a bank robbery. Robbery in the second degree is a seriousness level IV, class B felony. A person with no criminal history would receive a presumptive range of three to nine months in jail.

2nd degree Assault. The criminal offense of assault in the second degree is committed when a person: (1) intentionally assaults another and thereby recklessly inflicts substantial bodily harm; (2) intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; (3) assaults another with a deadly weapon; (4) with intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; (5) with intent to commit a felony, assaults another; or (6) knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture. Assault in the second degree is a seriousness level IV, class B felony (except that assault in the second degree with a finding of sexual motivation is a class A felony).

Summary of Bill:

The offense of robbery in the second degree is removed from the list of most serious offenses. In addition, certain elements of assault in the second degree are also removed from the list of most serious offenses. If the perpetrator: (a) intentionally assaults a person and thereby recklessly inflicts substantial bodily harm upon him or her; or (b) with intent to commit a felony, happens to assault another, then those two specific second degree assault offenses will no longer be considered a most serious offense. All other elements of assault in the second degree will continue to remain most serious offenses.

The result of removing offenses from the list of most serious offenses means that the crimes will no longer count as strikes under the "Three Strikes and You're Out" law.

In addition, a provision is added to allow certain offenders, previously convicted under the persistent offender statute (otherwise known as the Three Strikes and You're Out law) to request a re-sentencing hearing. In any criminal case where an offender has been sentenced as a persistent offender, then that offender must have a re-sentencing hearing if his or her current or past conviction was for a robbery in the second degree offense (with the exception of bank robbery crimes); or an assault in the second degree offense which involve: (a) intentionally assaulting a person and thereby recklessly inflicting substantial bodily harm upon him or her; or (b) assaulting another person while he or she happened to be intentionally committing a felony.

The prosecuting attorney for the county in which any offender was sentenced as a persistent offender shall review each sentencing document. If an offender was charged and convicted of a robbery or assault offense that would no longer be a most serious offense under this act then the prosecuting attorney must, or the offender may, make a motion for relief from sentence to the original sentencing court. The sentencing court must grant the motion if it finds that the offender's current or past conviction, which was used as a basis for finding that the offender was a persistent offender, was for a robbery or assault offense that is no longer a most serious offense under this act. The court must immediately set an expedited date for re-sentencing. At re-sentencing, the court must sentence the offender as if the robbery or specific assault offense was not a most serious offense at the time the original sentence was imposed.

The provision in the act that authorizes the re-sentencing of certain offenders classified as persistent offenders expires July 1, 2005.

Appropriation: None.

Fiscal Note: Preliminary fiscal note available.

Effective Date: The bill takes effect 90 days after adjournment of session in which bill is passed.