(dissenting) — I respectfully dissent. I disagree that Albrecht4 controls here. The key distinction between Albrecht and the case before us is that Albrecht had completed the confinement component of his sentence at the time he was released to community supervision. This was not the case, however, for Broten, who was on parole and still had confinement time remaining to be served when he was released to community supervision.
I. Introduction
Our legislature has provided several methods for charging a person with being a sexually violent predator. RCW 71.09.030. Generally, if a person convicted of a sexually violent offense has been released from “total confinement,” the State must allege and prove that he has committed “a recent overt act.” Former RCW 71.09.020(5) (2000). But “due process does not require the State to prove a further overt act occurred between [the recent] arrest and [earlier] release from incarceration,”
[w]hen on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6),[5] or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5)....
In re Det. of Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000) (emphasis added).6
Here, on the day the State filed his sexually violent predator petition, Broten was incarcerated for a sexually violent offense, namely his 1991 child rape conviction, for *259which he had not completed serving his term of confinement. Thus, under Henrickson, the State did not need to prove a recent overt act.
II. Incarceration
A. Temporary Incarceration for Community Placement Violations
Broten had been previously convicted and sentenced to prison for two sexually violent offenses. The first was for indecent liberties7 against his eight-year-old female cousin, for which he had been sentenced to a minimum of 18 months and a maximum of 120 months on December 1, 1986. Ex. 1.
In 1989, while on parole from the indecent liberties sentence, Broten was charged with his second offense, first degree child rape of his infant daughter, under the age of one year. On December 31, 1990, he pleaded guilty to this rape, for which, on January 22, 1991, he was sentenced to 57 to 75 months in prison, to be served consecutively with his earlier indecent liberties sentence. Clerk’s Papers (CP) at 2-3.
Broten was again paroled on August 12, 1992. On May 8, 1997, he was released to community custody8 status on the following conditions: (1) no contact with minor children unless a responsible adult aware of the conviction was present, (2) no contact with the victim of the crime, (3) no consumption of alcohol, (4) maintaining a place of residence approved by the Department of Corrections (DOC), and (5) compliance with any ordered or requested treatment.
*260On August 29, 1997, Broten’s parole was revoked; he returned for six days to DOC, which released him back on parole on September 5, 1997. On October 28,1997, Broten’s parole was again revoked; this time he returned to DOC for 120 days.
On February 25, 1998, Broten was again released to community supervision.9
B. “Total Confinement”
Again, Broten violated the conditions of his release. This time, Broten’s community custody status was terminated on June 30, 1998, at which time he was returned to prison to serve the remainder of his prison term for his child rape conviction. He has been in custody since that time. CP at 5.
Thus, Broten was incarcerated for his 1991 sexually violent offense at the time the State filed its sexual predator petition on November 9, 1998. CP at 10. He remained incarcerated for this 1991 child rape conviction when the State amended the sexual predator petition to delete the “recent overt act” allegation on June 22, 2000. CP at 543-44.
III. Albrecht Inapplicable
Justice Owens’ dissent in Albrecht notes that the majority opinion contains contradictory paragraphs.10 I read the majority as attempting to smooth out those contradictions in response to the dissent. The Albrecht majority relates the pertinent facts as follows:
*261Albrecht was sentenced to 48 months of confinement followed by a period of community supervision, with credit for 197 days served. On July 22, 1996, after serving the 48 months, he was released to community placement.
Thirty days after release from prison . . . Albrecht was arrested for violating the conditions of his community placement ....
Albrecht, 147 Wn.2d 1, 4-5, 51 P.3d 73 (2002) (footnote omitted). Thereafter, Albrecht agreed to a 120-day jail sentence for this community placement violation.
While Albrecht was serving the jail sentence for this violation, the State filed a sexually violent predator petition, ultimately amending the petition to delete the “recent overt act” allegation. The trial court allowed this deletion, reasoning that because Albrecht had been “totally confined” when the State filed the petition, the State did not need to prove a recent overt act. Albrecht, 147 Wn.2d at 5-6.
Division Three of this court reversed, holding that “the trial court should have required proof of a recent overt act,” despite that Albrecht was in custody for violation of his community placement conditions. Albrecht, 147 Wn.2d at 6. Following a petition for review, the Supreme Court remanded to Division Three for reconsideration in light of Henrickson, 140 Wn.2d 686. On remand, “[t]he Court of Appeals was not persuaded that Henrickson required a different result.” Albrecht, 147 Wn.2d at 6.
In Albrecht, the court reiterated its Henrickson holding that “ ‘[although chapter 71.09 RCW excuses the State from proof of a recent overt act when a petition is filed against an incarcerated individual, the commitment at issue must still satisfy due process.’ Henrickson, 140 Wn.2d at 694 (citing [In re Pers. Restraint of] Young, 122 Wn.2d [1,] 27[, 857 P.2d 989 (1993)]).” Albrecht, 147 Wn.2d at 9. The court further explained:
To relieve the State of the burden of proving a recent overt act because an offender is in jail for a violation of the conditions of *262community placement would subvert due process. An individual who has recently been free in the community and is subsequently incarcerated for an act that would not in itself qualify as an overt act cannot necessarily be said to be currently dangerous.
Albrecht, 147 Wn.2d at 10-11 (emphasis added).
Herein lies the distinction: Albrecht, who had completed his term of confinement and had been released, was subsequently jailed simply for violation of community placement conditions. In contrast, Broten had not completed his term of confinement for which he had been sentenced as a convicted child rapist. Although he had been conditionally released to community supervision, and had served jail time for violations of those conditions, his most recent violations triggered his reconfinement to serve the remainder of his original prison term. Unlike Albrecht, this time, Broten was not merely given a specific number of days in jail as punishment for community release violations.
The Albrecht majority articulates this difference in footnote 10:
Henrickson’s case was consolidated with that of Michael Halgren. After Henrickson’s conviction in 1990, he appealed and the court permitted Henrickson to remain free on bond for three years during the pendency of the appeal. Similarly, Halgren had been released into the community for three months pending sentencing. Henrickson is distinguishable from this case because both Henrickson and Halgren were released into the community before their convictions were finalized, whereas Albrecht was released after completion of his sentence of incarceration.
Albrecht, 147 Wn.2d at 9 n.10. Again, unlike Albrecht, and analogous to Henrickson and Halgren, Broten had previously been released into the community before completion of his sentence of incarceration.
In response to the dissent, the Albrecht majority further underscores its prior ruling in Henrickson'.
The dissent reads our opinion to cast doubt on the continued validity of Henrickson. We respectfully disagree. Henrickson *263remains good law. Our opinion speaks only to the limited situation where the State files a sexual predator petition on an offender (1) who has been released from confinement (2) but is incarcerated the day the petition is filed (3) on a charge that does not constitute a recent overt act. Henrickson is not implicated.
Albrecht, 147 Wn.2d at 11 n.11 (emphasis added). Again, Broten does not fit the situation described in this footnote. Broten was not incarcerated on a charge that does not constitute a recent overt act; rather, he was incarcerated to serve the remainder of his prison term for his original violent sex offense conviction.
That Broten’s return to prison was triggered by his community supervision violations does not mean that he was incarcerated merely for a community supervision violation. Instead, Broten’s return to incarceration was simultaneous with termination of his community supervision status: As was the case before enactment of the Sentencing Reform Act of 1981, chapter 9.94A RCW, Broten’s parole was revoked and he returned to prison to serve the rest of his 1991 sentence for child rape. As the dissent in Albrecht points out, and the majority does not refute, “under Washington law, ‘parole revocations are consequences of the original prosecution rather than part of a new prosecution.’. . . ‘[T]he punishment is part of the sanction for the original. . . crime.' [State v.] Prado, 86 Wn. App. [573,] 578[,937 P.2d 636, review denied, 133 Wn.2d 1018, 948 P.2d 388 (1997)].” Albrecht, 147 Wn.2d at 13-14 (Owens, J., dissenting) (citation omitted) (first emphasis added).
Accordingly, I would take this opportunity to clarify Albrecht and Henrickson,11 I would hold that Henrickson, and not Albrecht, applies to Broten. And I would affirm.
Review denied at 150 Wn.2d 1010 (2003).
In re Det. of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002).
Currently, RCW 71.09.020(15).
Original sequence of quoted clauses inverted for emphasis.
Indecent liberties against a child under age 14 is a “sexually violent offense.” RCW 71.09.020(15). Indecent liberties is a class B felony. RCW 9A.44.100(2).
RCW 9.94A.030(5):
“Community custody” means that portion of an offender's sentence of confinement in lieu of earned release time or imposed pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545, served in the community subject to controls placed on the offender’s movement and activities by the department....
RCW 9.94A.030(9):
“Community supervision” means a period of time during which, a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524.. .. For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.
Albrecht, 147 Wn.2d at 15-16 (Owens, J., dissenting).
Dissent: “Where the majority opinion leaves our holding in Henrickson is not at all clear.” Albrecht, 147 Wn.2d at 15 (Owens, J., dissenting).