(dissenting)—I cannot agree with the majority's decision which vacates the trial court's carefully considered order extending probation and orders Campbell's immediate release from the jurisdiction of the State.
The circumstances of the case require that we proceed cautiously. Louis Alton Campbell is described by his therapist as a paranoid schizophrenic with manifestations of antisocial behavior who has seriously abused drugs, threatened to kill himself and others, and who has attempted suicide possibly as an attention-getting device; he lacks control over his own behavior and must remain on psychotropic drugs, and, if released, he will likely get again involved in street drugs and felonious behavior.
There are at least two grounds upon which the Superior Court should be affirmed: (1) the period of 105 days during which the revocation proceeding was stayed at Campbell's request operated to toll the probationary period; and (2) the March 14, 1979, order extending probation, although entered ex parte, was in compliance with due process requirements.
*302Regarding the tolling of the probationary period, the majority states flatly, "We can find no authority for this proposition, and refuse to accept such rationale." I respectfully suggest that there is authority for tolling the probationary period under the circumstances here presented. In our own state, as well as other jurisdictions, it is fundamental that the probationary period is tolled if the probationer flees the jurisdiction or fails to report to his supervising officer as required. See State v. Frazier, 20 Wn. App. 332, 579 P.2d 1357 (1978); Gillespie v. State, 17 Wn. App. 363, 563 P.2d 1272 (1977). Admittedly, this principle is arguably grounded on the notion that the probationer, by fleeing, is guilty of wrongdoing, a factor missing here. However, in terms of the State's ability to proceed against him in a revocation proceeding, Campbell's requests for stays avoided the control of the court just as effectively as if he had fled; so, too, his commitment for incompetency put him beyond the supervision of the probation officer. Cf. United States v. Gerson, 192 F. Supp. 864 (E.D. Tenn. 1961), aff'd, 302 F.2d 430 (6th Cir. 1962).2
*303A situation nearly identical to the case at bar was presented to the California Court of Appeal in People v. Davidson, 25 Cal. App. 3d 79, 101 Cal. Rptr. 494 (1972). There, the defendant was convicted of possession of marijuana and placed on 3 years' probation. Some months after the conviction, his probation officer moved to revoke probation, alleging violations of the conditions of probation. However, the court, at the defendant's request, adjourned the criminal proceedings and initiated a civil commitment proceeding known as a narcotics rehabilitation commitment; the defendant was found to be an addict or in imminent danger of becoming an addict and was committed to a rehabilitation center. Following his parole from the rehabilitation center, the defendant was convicted of possession of heroin and sentenced to prison. His earlier probation was revoked some 4 years after it had been ordered originally, and he was ordered to serve both sentences concurrently.
On appeal, the defendant argued that the court was without jurisdiction to revoke probation because the 3-year probationary period had expired without being extended. The court disagreed, holding that the defendant's narcotics commitment had tolled the probationary period. The court noted that the narcotics rehabilitation proceeding had been initiated at the defendant's request and deprived the court of jurisdiction to proceed with the criminal case. Likewise, here, Campbell's commitment due to incompetency was at *304his own request, as was the 90-day extension of his commitment. In addition, by virtue of his incompetency, the court was unable to proceed with the revocation proceeding, just as the narcotics rehabilitation proceeding prevented the court from proceeding against the defendant in Davidson. See RCW 10.77.050.
The court in Davidson also advanced a theory that I think is applicable here, namely, that because the governing statute authorized the lower court to revoke, modify, or change its order suspending sentence at any time during probation, the order adjourning the criminal proceeding and institution of the narcotics rehabilitation proceeding was, in effect, a change or modification of the earlier order. In this state, RCW 9.95.230 authorizes a trial court to revoke, modify, or change its order suspending the imposition of sentence at any time during the course of probation. Under the same reasoning, the orders committing Campbell and staying the revocation proceeding necessarily involved a change or modification of the original order deferring imposition of sentence and operated to extend the probationary period a total of 105 days. It is undisputed that the orders staying the revocation were well within the 5-year probation period. I would apply the principles enunciated in People v. Davidson, supra, and hold that the requests for stays tolled the probationary period a total of 105 days. Under such an analysis, the order of June 4, 1979, extending probation was within the original probationary period.
Regarding the alternative ground for affirming the trial court, I must point out, as the majority fails to do, that the State attempted to supplement the record with the affidavit of Paul G. Dremousis, probation coordinator for the King County prosecutor, to show that Campbell had notice that the State would seek to extend probation. Campbell objected to the attempted supplementation of the record, but, at the request of the State, the trial court held a hearing pursuant to RAP 7.2(e) and made findings that the defendant's attorney was, in fact, informed of the State's *305intentions and voiced no objection.
I would sua sponte order that the record be supplemented with Judge Corbett's findings that Campbell's attorney knew that the State would seek an extension of probation. While it may have been better to have obtained defendant's attorney's written approval on the order extending probation, the proposed findings of the trial court demonstrate that notice was given and due process requirements met.
Even assuming Campbell had no notice that the State would extend probation, I am not convinced that the ex parte nature of the March 14, 1978, order is sufficient justification for releasing Campbell from the jurisdiction of the State. For the authority that ex parte extensions of probation are impermissible, the majority cites Skipworth v. United States, 508 F.2d 598 (3d Cir. 1975). A close reading of that case reveals that the court merely stated that ex parte extensions of probation are "inadvisable." Skipworth, at 602. Even Skipworth does not purport to require prior notice and a hearing in all situations. While I am in general agreement that ex parte extensions are inadvisable because of the potential for prejudice, I am also in agreement with these observations of the District of Columbia Court of Appeals:
In some cases exigent circumstances may legitimately arise which require such [ex parte] extensions in order to preserve jurisdiction over a probationer which would otherwise be lost due to expiration of the probation term. In that event an appropriate record should be made reflecting the necessitating circumstances.
(Footnote omitted.) Valentine v. United States, 394 A.2d 1374, 1376 (D.C. 1978).
I believe that exigent circumstances did exist necessitating an ex parte extension. Moreover, the record, even as unsupplemented, reflects that the exigencies were created by the defendant's own requests for civil commitment and stays of the revocation proceeding.
*306I therefore dissent.
Reconsideration denied November 12, 1980.
Review granted by Supreme Court February 13, 1981.
On June 4, 1979, the trial judge entered findings of fact in support of its order denying defendant's motion to dismiss for lack of jurisdiction, one of the orders from which this appeal is taken. The court's finding provided in part as follows:
That thereafter, the King County Prosecutor's Office scheduled a probation revocation hearing, before the Honorable Howard Thompson, alleging that the defendant, Louis Alton Campbell, threatened to kill his mother on September 20, 1976. This hearing was continued to December 21, 1976, at which time the defendant's attorney, Lewis Nomura, set forth in an affidavit requesting that the defendant be committed to the Department of Social and Health Services for psychiatric observation examination and treatment, "that your affiant believes that the defendant was acutely psychotic at the time of the alleged offense and is at present, mentally incompetent to understand the nature of the probation revocation hearing; this opinion is based on personal observation and the written report of Harvey A. Ries, M.D., attached." On December 21, 1976, the defendant's attorney, Lewis Nomura, presented an order committing the defendant to Western State Hospital for a 15-day period of observation, during which time the action was stayed as the order recited;
"It is Further Ordered that the action be stayed during the examination period." That the effect of this order was to extend the five-year probationary period for an additional 15 days.
Finding of fact No. 2.
*303That on January 11, 1977, the defendant's attorney presented an order to Judge Horton Smith requesting that the court extend the defendant's commitment for up to 90 days or until such time as the defendant regained his competency to participate in his probation revocation hearing, whichever occurred first. This request was based on a letter from Dr. George J. MacDonald, Clinical Director of the Western State Hospital Mentally 111 Offender Program, indicating to the court that the defendant was not competent to participate in a probation revocation hearing. The order presented by the defendant's attorney and signed by Judge Horton Smith, set forth that:
"It is Further Ordered that this action be stayed during this examination period." That the effect of this order was to extend the five-year probationary period for an additional 90 days.
Finding of fact No. 3.