first time offender waiver
FIRST TIME OFFENDER WAIVER RCW 9.94A.650 (former RCW 9.94.120(5))
Note: Excluded by statute from first time offender waiver are violent and sex offenses and delivery, manufacture, selling for profit or PWI of any Schedule I or II offense or methamphetamine. See, RCW 9.94A.640(1)(a)(b)(c)(d).
Multiple felony convictions do not disqualify the defendant as a “first time offender” for sentencing purposes. The words “a felony” in RCW 9.94A.120(5) is, at most, ambiguous and the rule of lenity would apply. State v. Welty, 44 Wn. App. 281, 726 P.2d 472 (1986) review denied 107 Wn.2d 1002 (1986)(five nonviolent felony charges alleged in two informations); State v. Johnson, 97 Wn. App. 679 (1999)(two “bad check” charges).
Affirmative conditions may be imposed under a First time offender Sentence and there is no requirement the conditions be “crime related” as defined in RCW 9.94A.030(11). RCW 9.94A.120(5) controls. State v. Johnson, 97 Wn. App. 679 (1999)(drug treatment and random UA and BAs in bad check case even though drugs or alcohol not related to crime).
The fact defendant receives a more onerous sentence as a first time offender than under the standard range, “while seeming anomalous”, is nonetheless completely consistent with the “coercive rehabilitation-oriented” philosophy of the SRA. State v. Smith, 49 Wn. App. 596, 744 P.2d 1096 (1987).
A prior deferred felony conviction later dismissed after successful completion of probation still constitutes a conviction and bars application of the first offender waiver. State v. Partida, 51 Wn. App. 760, 756 P.2d 743 (1988).
The trial court is not required to express on the record its reasons for not sentencing the person under the first time offender option. State v. Boze, 47 Wn. App. 477, 735 P.2d 696 (1987).
A note on applicability of FTOW to those with juvenile records
“....a juvenile felony record may render an adult ineligible for the first?time offender waiver under RCW 9.94A.120. The first?time offender waiver is available only to persons who have never previously been convicted of a felony in Washington. Because "conviction" under the SRA includes adjudications of guilt under Title 13 RCW, and "adjudication" under the juvenile code has the same meaning as conviction, it is arguable that juveniles who have been adjudicated guilty of felonies are ineligible for a first?time offender waiver for their first adult offense. State v. J. H., 96 Wn. App. 167 (1999) review denied, 139 Wn.2d 1014 (1999), cert. denied, 529 U.S. 1130 (2000)(dictum explaining why 1997 amendments to juvenile justice code do not make juvenile proceedings so similar to adult proceedings as to make a jury trial constitutionally required but noting “offender” also applies to Persistent Offender and DOSA and Work Ethic court eligibility).
Note: The 1997 legislature disqualified offenders with any prior juvenile felony adjudications from the First time Offender Waiver. Comment section, 2003 Adult Sentencing Manual , p. II-32. (This is what State v. J.H., supra appears to refer to.)