holding that “[w]hen prosecutors seek enhanced penalties, notice of their intent must be set forth in the information. Our concern is more than infatuation with mere technical requirements”
How later courts described this case
- holding that “[w]hen prosecutors seek enhanced penalties, notice of their intent must be set forth in the information. Our concern is more than infatuation with mere technical requirements”
- remanding for resentencing where jury found by special interrogatory that defendant was armed with deadly weapon *95 upon commission of the crime, but prosecutor had neglected to file notice advising defendant that the State intended to seek an enhanced penalty
- remanding for resentencing where jury found by special interrogatory that defendant was armed with deadly weapon upon commission of the crime but prosecutor had neglected to file notice advising defendant that the State intended to seek an enhanced penalty
- holding that failure to give notice of a sentencing enhancement prior to trial was a due process violation
Written by the judges who cited it.
The opinion
Rosellini, J.
(concurring in part; dissenting in part)— Mr. Theroff and his attorney were aware and had notice of the State's intent to seek the mandatory minimum sentence. No one was misled or deceived that the enhanced penalty would not be sought.
It seems to me that substance should prevail over form. I have great faith that the prosecutors will follow the rule in State v. Cosner, 85 Wn.2d 45 , 530 P.2d 317 (1975). In the few cases such as this one, the letter of the Cosner case has not been followed. However, actual notice to seek the enhanced penalty was understood by everyone.
There has been no miscarriage of justice, and I would affirm the enhanced penalty.
Dolliver, J., concurs with Rosellini, J.
Reconsideration denied February 13, 1981.