(dissenting) — I recognize that the result of the majority is supported by State v. Mortrud, 89 Wn.2d 720, 575 P.2d 227 (1978), which holds that under RCW 9.95.230, the court loses jurisdiction to hear the revocation petition *884after the expiration of the probationary period when execution of sentence has been suspended under RCW 9.95.210.
In Mortrud, the court was concerned with the prejudice to a probationer which can occur when, through administrative inertia, the petition to revoke probation is filed after the probationary period has expired. In that case, it was filed many months later. No statute specifically requires that the hearing be held within the probationary period. In giving what I regard as an overbroad interpretation to RCW 9.95.210 and .230, Mortrud relied on State v. Monday, 85 Wn.2d 906, 540 P.2d 416 (1975), where the petition to revoke was likewise filed after the period of the actual sentence had expired. In neither case did the court have occasion to consider specifically the problem presented when the petition is filed within the probationary period, but because of normal docket procedures, including defendant's request for a continuance, a hearing cannot be held until thereafter.
The facts in the present case are such that, in my opinion, considerations giving rise to the result in Mortrud are unpersuasive and Mortrud should not control.
In the case before us, there was no administrative inertia. The petition was timely filed on January 7, and an omnibus hearing set for January 21, 1977, which was 2 days before the expiration of the probationary period. On January 21, defendant requested a continuance "to enable him to obtain documents necessary to be presented at his hearing." The court thereupon set January 28, 1977, as the date for the revocation hearing. This should, in my opinion, be sufficient to invoke the jurisdiction of the court. The authorities from other jurisdictions cited by the State and noted in the majority opinion, are persuasive to me.
A very similar situation was before the court in Parkerson v. State, 230 Ark. 118, 121, 321 S.W.2d 207, 208 (1959), and the court said:
It would be approaching the ridiculous to hold that appellant should be allowed to ask for and accept the *885favor of the court and then later use that favor to deprive the court of jurisdiction over him.
Parkerson v. State also cited with approval the reasoning of People v. Hodges, 231 Mich. 656, 660-61, 204 N.W. 801, 802 (1925), wherein the court said:
If no action had been taken during the period of probation a more serious question would be presented. But here the petition to revoke the probation was filed within the period of probation and we think it must be held that the filing of this petition within the period of probation gave the court jurisdiction which was not lost by a reasonable delay incident to a hearing upon it. Had objection been made to an adjournment the court could then have passed sentence and no question could have been raised to its validity.
The restrictive Mortrud rule requiring a hearing before the term of probation has expired, rather than merely the filing of the petition to revoke within that period, serves no useful purpose in preventing administrative inertia. Rather, as the majority here recognize, it gives the defendant a period of time before the probationary term has expired in which he cannot be required, in all practicality, to comply with the terms of his probation. Such an unnecessarily restrictive interpretation of the law can only serve to further erode public confidence in the judiciary. State v. Mortrud, supra, should be reexamined by the Supreme Court of this state, and further consideration given to the realities of the supervision of probationers and the security of the public. Mortrud should be overruled insofar as it can be read to require a hearing before the probationary term expires. It should be sufficient to secure jurisdiction that the petition is filed within that period of time, or in the event of a last minute violation such as also occurred here, that it be filed promptly thereafter. Cf. State v. White, 193 Neb. 93, 225 N.W.2d 426 (1975).
I would affirm the judgment of the trial court revoking the suspended sentence.
Reconsideration denied December 4, 1978.
Appealed to Supreme Court December 13, 1978.