State v. Gomez-Florencio , 88 Wash. App. 254 ( 1997 )

Brown, J.

(dissenting) — RCW 9.94A. 120(1) requires a trial judge to sentence within a presumptive standard range. There are few exceptions. State v. Estrella, 115 Wn.2d 350, 798 P.2d 289 (1990). A trial court acts without statutory authority when imposing a sentence based upon a miscalculated offender score. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994). The trial court not only has the power but the duty to correct an erroneous sentence when discovered. State v. Allyn, 63 Wn. App. 592, 596, 821 P.2d 528 (1991), review denied, 118 Wn.2d 1029 (1992). The duty should be no less when the offender score is determined incorrectly to be too high or too low. State v. Smissaert, 103 Wn.2d 636, 641, 694 P.2d 654 (1985).

This is not a case where a defendant has entered into a plea agreement based upon misinformation and reliance on a mistakenly computed standard range. See State v. Hardesty, 129 Wn.2d 303, 915 P.2d 1080 (1996). Rather it is a case where, after trial, an incorrect sentence was entered based upon a miscalculated offender score due to the defendant’s use of multiple names which made it difficult to determine an accurate criminal history. I do not believe CrR 7.8 applies under these circumstances to avoid the trial court’s statutory duty to correctly sentence. I believe the trial court was justified in granting the motion to vacate the original sentence for the purpose of resentencing. This is a case where the trial court entered an erroneous and invalid sentence in the first place, which needs to be corrected. State v. Pringle, 83 Wn.2d 188, 193, 517 P.2d 192 (1973). The remedy is to remand and resentence with credit for the time the respondent has served. Smissaert, 103 Wn.2d at 641-42. This will put him in the same position he would have been in had the correct information been known to the trial court at the time of sentencing. This will not prejudice the defendant who was only four months into his sentence when the problem was presented to the trial court for correction.

I respectfully dissent.

Review denied at 134 Wn.2d 1026 (1998).