State v. Summers

43 P.3d 526 (2002)

STATE of Washington, Respondent,
v.
Robert D. SUMMERS, Appellant.

No. 26150-2-II.

Court of Appeals of Washington, Division 2.

February 15, 2002.

ORDER MODIFYING OPINION

On January 8, 2002, The Washington Supreme Court granted the petition for review of our opinion, State v. Robert D. Summers, 107 Wash.App. 373, 28 P.3d 780 (2001), review granted, 145 Wash.2d 1015, 37 P.3d 289 (2002), and remanded for reconsideration in light of State v. Smith, 144 Wash.2d 665, 30 P.3d 1245 (2001). Upon reconsideration, we agree that a portion of the section on calculation of the offender score should be withdrawn and replaced. Accordingly, it is hereby

ORDERED that the sentence "We affirm." which appears on the first page of our opinion, 107 Wash.App. 373, [28 P.3d 780] is hereby deleted. The following sentence is substituted in its place.

We affirm the conviction, but vacate the sentence and remand for resentencing. It is further

ORDERED that the second and third paragraphs^[1] of the section entitled "Offender Score" on the last page of our opinion, 107 Wash.App. at 390, [28 P.3d at 788], are hereby deleted and the following paragraph is substituted in their place.

Summers is correct. The trial court should not have considered the juvenile convictions for crimes committed before he was 15. State v. Smith, 144 Wash.2d 665, 675, 30 P.3d 1245 (2001) (previously washed out juvenile adjudications are not considered in calculating offender score).

The conviction is affirmed, but sentence is vacated and the matter is remanded for resentencing.

IT IS SO ORDERED.

NOTES

[1] The paragraph begins: "We rejected the identical challenge in State v. Hendricks...."