State v. Porter , 81 Wash. 2d 663 ( 1972 )

81 Wash. 2d 663 (1972) 504 P.2d 301

THE STATE OF WASHINGTON, Respondent,
v.
BEN CLAUDE PORTER, Appellant.

No. 42333.

The Supreme Court of Washington, En Banc.

December 14, 1972.

Cox & Majeres and John J. Majeres, for appellant (appointed counsel for appeal).

Ronald L. Hendry, Prosecuting Attorney, Joseph D. Mladinov, Special Counsel, and Eugene G. Olson, Chief Criminal Deputy, for respondent.

UTTER, J.

The appellant, Ben Claude Porter, was charged with assault in the second degree. It was alleged in the information that he "did willfully assault Michael Ross Cox with a weapon, instrument or thing likely to produce bodily harm, to wit: a rifle." Porter was found guilty of the offense.

At the time of sentencing, the court indicated it believed itself to be bound to impose a 5-year minimum sentence under the provisions of RCW 9.41.025. This was the first indication in the record to the appellant that the provisions of this statute were to be applied. There was no indication of this fact in the information and no request for a special verdict. Our holding in State v. Frazier, 81 Wash. 2d 628, 503 P.2d 1073 (1972), is controlling.

The conviction is affirmed and the case is remanded for resentencing. The trial court will not be bound by the provisions of RCW 9.41.025 for the reasons stated in State v. Frazier, supra.

HAMILTON, C.J., FINLEY, ROSELLINI, HUNTER, HALE, STAFFORD, and WRIGHT, JJ., concur.