In re the Personal Restraint Well , 133 Wash. 2d 433 ( 1997 )

Alexander, J.

(concurring in dissent) — I concur with the views that Justice Sanders has set forth in his dissent.' I write separately only to emphasize what, in my view, is an internal inconsistency in the majority opinion. In holding that Well is procedurally barred from collaterally attacking his commitment to Western State Hospital, the majority concludes that the order of commitment was "passed upon Well as a criminal offender,” and thereby meets the definition of "sentence.” Majority op. at 441. In support of that determination, the majority relies upon a standard dictionary definition of the word "sentence” as "the judgment passed by a court or judge on a person on trial as a criminal or offender (3) : the order by which a court or judge imposes punishment or penalty upon a person found guilty; esp : the punishment or penalty so imposed!.]” Majority op. at 439 (quoting Webster’s Third New International Dictionary 2068 (1986)). Inexplicably, the majority follows its conclusion that Well was sentenced, with a holding that Well was not entitled to the statutory notice of the one-year time limit on collateral attacks because he is not "serving a term of 'incarceration.” Majority op. at 443.

If, as the majority holds, Well was sentenced to Western State Hospital as punishment because he is an offender, then it follows that he is incarcerated and was, therefore, entitled to receive notice of the time limit for collaterally attacking the sentence. On the other hand, if he was not incarcerated, as it also holds, he is not being punished or penalized and the statutory bar to collateral attacks does not apply to him. In either case, Well’s personal restraint petition is not time barred.

Johnson, J., concurs with Alexander, J.