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Williams v. State10/17/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4473
Aaron R. Williams, Jr., was convicted of felony driving while intoxicated. Superior Court Judge Peter G. Ashman sentenced Williams to four years with two years suspended. Judge Ashman placed Williams on probation for a period of ten years from the date of his release. As a condition of probation, Judge Ashman ordered Williams to " ndergo a substance abuse evaluation by an appropriate treatment agency and follow through with any recommendation, to include in-patient or out-patient treatment with aftercare."
Williams appeals, arguing that this sentence is excessive. But the state points out that this court only "has jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two years for a felony offense . . . on the grounds that the sentence is excessive." Arguably a condition of probation that requires a defendant to undergo treatment in a residential facility could be the equivalent of a sentence of imprisonment. However, we need not deal with this argument here. When Judge Ashman imposed the probation condition requiring Williams to undergo substance abuse evaluation and to follow through with any recommended treatment, Judge Ashman did not impose a maximum length of residential treatment. When setting a condition of probation that requires residential treatment, the court is required by statute to specify a maximum length of treatment. Because Judge Ashman did not set a maximum length for Williams to undergo residential treatment, that portion of probation, which could require Williams to undergo residential treatment, is illegal. Therefore, we must strike the portion of the special condition of probation that could require Williams to undergo residential treatment. The remainder of the condition of probation, which requires Williams to undergo evaluation and to comply with other recommendations of the treatment agency, remains intact.
With Williams's sentence so modified, it is clear that this court does not have jurisdiction to hear his appeal. We accordingly dismiss Williams's sentence appeal. Our decision modifying Williams's condition of probation renders moot a significant part of Williams's brief. We conclude that Williams and the state should have the opportunity to file new briefs with the supreme court. Therefore, notwithstanding Alaska Appellate Rule 403(h), which sets a ten-day deadline for seeking sentence review in the supreme court, we grant Williams's ten days from the effective date of this decision to file his petition for sentence review.
William's sentence appeal is DISMISSED.
Page 1 Alaska DUI Attorneys
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