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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN L. GRAYBILL, )
)
Appellant, ) Court of Appeals No. A-3651
) Trial Court No. 3AN-S81-6361CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1186 - December 20, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, Elaine M. Andrews, Judge.
Appearances: Patrick J. McKay, Anchorage,
for Appellant. Eugene B. Cyrus, Assistant
District Attorney, Ken Goldman, District
Attorney, Palmer, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Lohff, District Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
John L. Graybill was convicted of twenty Fish and Game
violations stemming from a hunting trip near Iliamna. District
Court Judge Elaine M. Andrews sentenced Graybill to a total of
seven years with five and one-half years suspended, fined him
$14,000 with $3,000 suspended, revoked his hunting license for a
total of forty-two years, and placed him on probation for five
years. Graybill v. State, 672 P.2d 138, 139-40 (Alaska App.
1983). On appeal, Graybill contends the trial court's subsequent
amendment of his probation termination date violated his due
process and double jeopardy rights. We affirm.
In her oral pronouncement of sentence on February 25,
1982, Judge Andrews placed Graybill on probation "for five
years." The written judgments, issued two days later, indicated
that Graybill was placed on probation until February 25, 1987,
subject to the following conditions: "No Fish and Game
violations for 5 years;" "abide by license revocation;" "no
flying for yourself or others for the purpose of hunting, may fly
for pleasure."
On March 25, 1982, Judge Andrews "stay[ed] the
sentences as far as the jail time goes" and worked out a payment
schedule for the fines. Graybill then appealed his conviction
and sentence.
We affirmed his conviction, but vacated his sentence.
Graybill v. State, 672 at 143-44. The Alaska Supreme Court
reversed our decision and reinstated the original sentence.
State v. Graybill, 695 P.2d 725, 731 (Alaska 1985).
On remand, Graybill requested that his sentence be
reduced. On October 17, 1985, Judge Andrews reduced Graybill's
jail time from 555 days to 450 days and the fine from $14,000
to $5,000. The amended judgments, like the original written
judgments, indicated that Graybill's probation expired on
February 25, 1987. The judgments also imposed the same probation
conditions imposed at the original sentencing.
On September 30, 1988, the state filed a petition to
revoke probation, alleging that Graybill had unlawfully
transported an illegally-taken wolf in February of 1988. On that
same date, the state filed a motion to correct the portion of
Graybill's judgments indicating that Graybill's probation expired
on February 27, 1987. In its motion to correct the judgments,
the state contended that Graybill's original sentence had been
stayed, in accordance with Alaska Appellate Rule 206(a)(3), while
his case was on appeal.1 In the state's view, the court was
authorized pursuant to Alaska Criminal Rule 362 to amend the
judgments to reflect that Graybill's probation expired five years
after the court reduced his sentence rather than on February 25,
1987.
Judge Andrews granted the state's motion, ruling that
Graybill's probation had been stayed pending appeal pursuant to
Appellate Rule 206(a)(3). The judge further stated that her oral
pronouncement of five years' probation at the original sentencing
controlled over the internally inconsistent written judgments.
On appeal, Graybill contends the trial court's amendment of his
probation termination date violated both his due process and
double jeopardy rights. Graybill claims the amendment was
improper because there is no contemporaneous evidence to suggest
that an objectively ascertainable mistake was made in the October
17, 1985, judgments. See Shagloak v. State, 582 P.2d 1034, 1037-
38 (Alaska 1978). In Graybill's view, the court's March 25,
1982, order staying only his jail sentence indicates that
Graybill's probation began to run from the date of his original
sentencing. Graybill thus contends that his probation expired
when the judgments indicated it expired -- on February 25, 1987.
Graybill's argument overlooks the fact that probation
generally does not begin to run until the completion of the
unsuspended portion of a defendant's sentence. See Wozniak v.
State, 584 P.2d 1147, 1148 (Alaska 1978); Gant v. State, 654 P.2d
1325, 1326-27 (Alaska App. 1982). In the present case, for
example, Graybill could hardly have expected to receive credit
for being on probation while serving the unsuspended portion of
his jail term; rather, his probation would ordinarily be deemed
to commence upon his release from jail. Absent a specific order
to the contrary, Graybill's probationary term would not have
commenced earlier merely because he postponed serving his jail
term by filing an appeal. See Appellate Rule 206(a)(3). There
is nothing in the record to suggest that the sentencing court
contemplated placing Graybill on probation before he even began
to serve his sentence.
Because a probationary term does not ordinarily begin
until the unsuspended portion of a sentence has been served,
Judge Andrews' original pronouncement of a five-year period of
probation was obviously inconsistent with the probation
termination date in the subsequently entered written judgments,
which simply listed a date five years after the date the written
judgments were entered. Where, as here, a conflict exists
between an orally imposed sentence and a subsequently issued
written judgment, it is well settled that the oral pronouncement
of sentence must govern. Burrell v. State, 626 P.2d 1087, 1089
(Alaska App. 1981). Judge Andrews' oral pronouncement of a five-
year probationary term thus controls over the probation
termination date of February 27, 1987, as reflected in the
written judgments entered on February 27, 1982.
The amended judgments entered on October 17, 1985 --
when Judge Andrews reduced Graybill's jail sentence and fine
following his unsuccessful appeal -- merely carried forward the
probation termination date listed in the original written
judgments, thereby perpetuating the conflict between the written
judgments and the original, orally imposed sentence. Graybill
does not contend, and the record contains nothing to suggest,
that Judge Andrews contemplated any change in the originally
specified period of probation when she reduced Graybill's jail
term and fine in October of 1985.
Because Judge Andrews' original, oral order providing
for a five-year probationary term continued to govern over the
inconsistent probation termination date reflected in the amended
written judgments, Graybill's due process and double jeopardy
rights were not implicated by Judge Andrews' decision to correct
the written judgments. The only effect of the correction was to
conform the written judgments to the original, orally imposed
sentence.
Graybill raises an additional line of argument that
merits separate consideration. Analogizing his case to Wickham
v. State, 770 P.2d 757 (Alaska App. 1989), rev'd on other
grounds, 796 P.2d 1354 (Alaska 1990), Graybill contends that it
would be unjust to deny him probationary credit for the period
when his case was on appeal, because he believed that he was on
probation and abided by his conditions of probation at all times.
Graybill's case, however, is not analogous to Wickham.
Unlike Wickham, Graybill was never placed on formal probation. He
was not assigned a probation officer and was never required to
report regularly to the probation office. In short, he was never
treated by the state as being under formal supervision. To the
extent he believed himself to be on probation, his belief was
unilateral and was not fostered or reinforced by any action on
the state's part. In the absence of state action contributing to
Graybill's mistaken assumption that he was on probation, his
unilateral decision to comply with the conditions of probation
did not automatically entitle him to receive credit against his
probationary term.
Even in the absence of state action fostering
Graybill's belief that he was on probation, we might be inclined
to find that he was entitled to credit for the time his appeal
was pending if his conditions of probation had actually been
burdensome, requiring the expenditure of substantial time, effort
or resources, or involving a significant restriction of freedom.
Such was not the case, however. Apart from conditions
essentially prohibiting Graybill from engaging in conduct that
would independently have been illegal, the only probation
condition imposed in Graybill's case was the requirement that he
abstain from flying himself or others for purposes of hunting.
This condition was itself minimally restrictive, since Graybill's
hunting license had been revoked, and he was thus personally
prohibited from hunting.
Assuming that Graybill, acting on the mistaken
assumption that he was on probation, refrained from flying
friends or acquaintances on hunting trips while his case was on
appeal, we do not believe that the relatively minimal
inconvenience of such abstinence would in and of itself warrant
his being credited for time spent on probation.3 Cf. Paul v.
State, 560 P.2d 754, 758 (Alaska 1977). We thus conclude that
the district court did not err in correcting Graybill's judgments
by extending his probationary term beyond February 27, 1987.
The order revoking probation is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. Rule 206(a)(3) provides:
An order placing the defendant on probation shall be
stayed if an appeal is taken.
2. Rule 36 provides:
Clerical mistakes in judgments, orders or other parts
of the record, and errors in the record arising from
oversight or omission, may be corrected by the court at
any time and after such notice, if any, as the court
orders.
3. It is conceivable that Graybill could have successfully
asserted a reasonable mistake of fact defense against his
probation violation charge if the charge resulted from conduct
that Graybill believed to be permissible because he was no longer
on probation. For example, Graybill might have raised such a
defense had he been charged with violating the conditions of his
probation by flying friends on a hunting trip. Such a defense
was plainly unavailable here, however, since the petition to
revoke Graybill's probation alleged that Graybill had committed a
new crime. Regardless of whether Graybill reasonably believed
that he was no longer on probation, he could not have believed
that he was entitled to break the law.
