Gilbert v. State , 1979 Alas. LEXIS 656 ( 1979 )

BURKE, Justice,

concurring.

I think there is a serious question whether the trial court had the authority to suspend any part of the minimum ten-year sentence required by AS 11.15.295. When that section was enacted, in 1968, the House Judiciary Committee reported:

This bill imposes mandatory sentences on the first and subsequent convictions for the commission of certain serious crimes if the individual is carrying a firearm. There is a 10-year minimum sentence for the first offense and 25 years for a subsequent offense.

1968 House Journal 434 (emphasis added). Thus, it appears to me that a strong argument can be made that the legislature intended to exempt such violations from the operation of those statutes otherwise allowing the trial courts to suspend the execution or imposition of all or part of a sentence of imprisonment. See AS 12.55.080-090. The state, however, has not seriously addressed this issue in its brief.

If AS 11.15.295 does in fact require an offender to serve a ten-year mandatory term of imprisonment, I assume that the trial court’s action in suspending the execution of six years of the defendant’s sentence was illegal and that therefore, the order of suspension could be stricken without violating the double jeopardy provisions of the state constitution. However, since the state has failed to brief this issue or otherwise urge such a construction of the statute, I concur in the decision reached by my colleagues. As to the other issues, I share their views.