Opinion
No. 36913.
November 8, 1948.
1. Criminal procedure — suspension of sentence — felony cases.
There is no statutory authority for suspension of sentence in felony cases.
2. Criminal procedure — final judgment — sentence.
The final judgment in a criminal case is the sentence.
3. Criminal procedure — postponing sentence beyond term in felony cases.
In a felony case an order purporting to entirely postpone sentence has the effect to keep the case in court until finally disposed of by the entry of the order of sentence, although as much as five years or more has intervened.
APPEAL from the circuit court of Lee County; RAYMOND T. JARVIS, Judge.
Claude F. Clayton, and Floyd W. Cunningham, for appellant.
I. Did the circuit court lose all further jurisdiction in criminal cause Number 10779 when it accepted a plea of guilty to a felony indictment by entering an order thereon deferring indefinitely the imposition of any sentence?
We have been unable to find any case from the Court which would be completely decisive on this question. There is no statute which authorized such a procedure. And, this is a legislative question upon which the legislative authority of this state has not yet acted.
Greatly persuasive obiter dictum on the non-action of the legislative body on this matter appears in the majority opinion of this Court delivered by Justice Griffith in the case of Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581, from which we quote: "Such being the plenary power of the law-making body, we suppose it will not be denied that it is within the legislative authority to provide that, in all except non-bailable cases, the court shall not be obliged to impose any sentence at all at the term during which the verdict or plea of guilty is pronounced, but may prescribe that the court, in its discretion, may continue, the case to the next succeeding term and thence from term to term, sentence to be imposed at any later term to which the case has been continued for that purpose, at which later term the court may inquire into the conduct of the convict since the date of his conviction in order to furnish further light as to the proper sentence to be imposed."
Here no sentence was pronounced upon entry of the plea of guilty and there was no continuance for any purpose. The order simply recited, "It is further ordered that sentence be and is hereby deferred indefinitely on recommendation of the District Attorney, to be imposed in term time or in vacation as and when the Court may see fit."
We do not here question the power of the Legislature to authorize the continuance of a felony case, after plea or verdict of guilty, to the next regular term and thence from term to term for later sentence for valid reason. But, it is questionable whether even the Legislature could authorize the procedure undertaken in this case — the indefinite postponement of sentence. 16 C.J.S. 497; 16 C.J. 1286; Vinson v. State, 79 So. 316; State v. Kirby, 96 Miss. 629, 51 So. 811.
"However, in the absence of a permissive statute the indefinite postponement of sentence on one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term, such postponement being in effect a discharge of the prisoner and therefore, ousting the court, after the expiration of the term, of further authority over him." 22 C.J.S. 262, Sec. 167; 16 C.J. 183, Sec. 251 (And notes to each citation).
"As has been stated previously, the court has power, in the exercise of its discretion, to suspend sentence for a reasonable time or temporarily for stated periods for any proper purpose. But in the absence of statutory authority, the decisions are not uniform as to the power of the court indefinitely to suspend or to withhold the passing of sentence after a plea or verdict of guilty. In some jurisdictions the power of the court to suspend or to withhold indefinitely the pronouncing of the sentence is denied upon the ground that an attempt to do so is a usurpation of the power to pardon or to remit the punishment, which belongs solely to the executive, especially where there are statutes providing for a system of parole and for boards to administer the same. 16 C.J. 1286, Sec. 3041, and citations there.
We have said that we have been unable to find any case from this Court which would be completely decisive on this question. However, there are cases within this jurisdiction in which this Court has dealt with closely related questions. In their chronological order those cases are: Gibson v. State, 68 Miss. 242, 8 So. 329; Fuller v. State, 100 Miss. 811, 57 So. 6, 507; Hoggett v. State, 101 Miss. 269, 272, 57 So. 9, 811, 812.
In the Gibson case (1890) the Court said simply that the person for whose benefit the suspension was entered, who did not object, could not complain when later the suspension was revoked. The Court did not discuss nor did it decide anything with reference to the powers of a court to suspend sentence or suspend the imposition of sentence.
In the first Fuller opinion the Court speaking through Justice McLain held that the circuit court had inherent power to suspend. This opinion was rendered January 15, 1912.
The first Hoggett cases were decided on January 15, 1912, and followed the opinion of that date in the Fuller case.
The Fuller case was reconsidered by the Court on suggestion of error and opinion delivered thereon by Justice Smith, March 11, 1912, the suggestion of error was overruled, but the Court withdrew its former opinion and held:
(a) That the circuit court did not have inherent power to suspend sentence and its attempt to do so was void.
(b) That the convict could be punished by a later order imposing sentence, saying, "While at large under this void order, to which he did not object, appellant was in the same situation that he would have been, had he simply escaped from custody. In such case the sentence is not satisfied until it has been actually served."
The second Fuller opinion was followed in disposing of the suggestions of error in the two Hoggett cases on the same date.
These cases involved both the question of the power to suspend sentence and the power to suspend imposition of sentence.
The Gibson, Fuller and Hoggett cases all deal with misdemeanors.
In the final opinions the question of invasion of executive authority by suspension was not dealt with because it was not decisive.
The entry of the order whereby the circuit court attempted to defer indefinitely the imposition of sentence was a judicial invasion of the executive authority of this state without warrant in our constitution and without legislative sanction.
In the case of State v. Kirby, 96 Miss. 629, 51 So. 811, this Court held that a legislative effort to give the boards of supervisors power to discharge a convict after thirty days from the date of sentence because of apparent inability to work was an invasion of the power of the executive as delegated by Sec. 124 of our state constitution. This was in 1910.
Again in 1926 this Court held in State v. Jackson, 143 Miss. 745, 109 So. 724, that a statute denouncing wife desertion or nonsupport which provided suspension of sentence upon the convict giving bond was an invasion of the constitutional power of the executive to pardon given to that branch by Sec. 124.
There is no question on the power of the circuit court to suspend imposition of sentence in a felony case. It simply has no such power and its attempt to do so here was utterly void.
And, we respectfully submit, according to the weight of reason, the entry of this void order, in a felony case, deprived the court of all authority and operated then, upon the adjournment of the term, to a final discharge of appellant.
II. Did the circuit court lose all jurisdiction by the unreasonable delay from the plea of guilty to grand larceny in criminal cause Number 10779 on May 25, 1942 by the time it attempted to impose sentence more than five years six months thereafter on December 6, 1947?
In the case of Smith v. State, 121 N.E. 829, 3 A.L.R. 999, the Supreme Court of Indiana held that less than ten months delay in imposing sentence after plea of guilty, with two terms intervening, deprived the court of jurisdiction to sentence.
At 3 A.L.R. 1003, et seq., there is an extensive annotation covering the subject of loss of jurisdiction by delay in imposing sentence. We rely strongly upon part II of this annotation and the authorities listed and discussed there.
We quote from the note heading of part II: "It seems to be well settled that it is the duty of the court on a conviction or plea of guilty to impose sentence within a reasonable time, and an indefinite postponement of sentence deprives the court of jurisdiction over the prisoner, and a subsequent sentence is without judicial authority and void."
In People ex rel. Smith v. Allen, 155 Ill. 61, 41 L.R.A. 473, 39 N.E. 568, as covered in the above annotation there was a delay of about three years from plea of guilty to sentence and a loss of jurisdiction. We quote from that opinion: "Having then withheld judgment upon the plea, and permitted the prisoner to go at liberty without in any way requiring him to further appear in answer to the charge, had the court jurisdiction, more than three years thereafter, to cancel his arrest and pass sentence upon him? It must be admitted that, if such power remained in the court three years, it would continue indefinitely, and might be exercised at any future time, and that, too, without any reason for doing so, except such as might exist in the mind of the judge causing the re-arrest and pronouncing judgment."
"The petitioner cannot be compelled to remain for years subject to the risk of being sentenced on this complaint, if at any time the public authorities should choose to bring him before the court for that purpose." Marks v. Wentworth, 199 Mass. 44, 85 N.E. 81.
In People ex rel. Boenert v. Barnett, 202 Ill. 287, 63 L.R.A. 82, 67 N.E. 23, as covered in the A.L.R. note, supra, there was a delay of less than two years, and a loss of jurisdiction, although court proceedings were pending all that time. The court said, "We are of the opinion that this was an unreasonable and unwarrantable delay, it being entirely unexplained by anything in the record, and that the court, in view of all the circumstances, including the omission to require security for relators appearance, lost jurisdiction, and that the subsequent sentence was without judicial authority . . ."
In 97 A.L.R. 802 the annotation in 3 A.L.R. 1003, cited supra is supplemented.
We must concede that if the circuit court had authority to impose sentence on December 6, 1947 — five years, six months and eleven days after plea of guilty on May 25, 1942 — then the court would also have authority to impose sentence ten years after plea of guilty, twenty years after plea of guilty, or at any time thereafter. And, since there is no statutory limitation upon the power to impose sentence, it could be imposed without a hearing, without reason, and without any of the safeguards which our judicial system has so long thrown about the liberty of our citizens.
George H. Ethridge, Assistant Attorney General, for appellee.
I submit that the judgment was lawful although not entered at the same term of court at which the plea of guilty was entered and although several years have elapsed since the plea of guilty until the imposition of the sentence. This Court, in Gibson v. State, 68 Miss. 242, 8 So. 329, settled this question favorably to the contention of the State in the court below. In that case it was held: "As the defendant pleaded guilty, and was liable to be immediately sentenced to pay a fine and costs, and to be imprisoned, and the court, presumably with the consent of the defendant, for whose benefit it was, and who did not object, suspended judgment, and postponed sentence except for costs, no wrong was done to him by pronouncing at a future term the sentence, which might have been immediately given, but was thus delayed. It is not the case of a second punishment for an offense. It does not appear that the costs were paid, but, if they were, that was the condition on which the postponement of sentence was made."
This case was decided before the statute was passed authorizing the circuit court to suspend sentences in misdemeanor cases. The opinion of the Court in this case is broad and I think it fully covers the present case.
In Fuller v. State, 100 Miss. 806, it was held that the court did not have power inherently to suspend a sentence during good behavior and on other conditions but that the part of the order attempting to suspend the part of the sentence on good behavior was void because the court had no power to suspend the judgment but after so holding, the Court said: "It does not follow from this, however, that appellant must now go unpunished. That portion of the judgment which directed `that the jail sentence be suspended during the good behavior of the defendant' was void, and the defendant could have been taken into custody immediately upon the rendition of the judgment. The postponement of his imprisonment was presumably with his consent, for it does not appear that he at any time requested, as he had the right to do, to be taken into custody, and consequently he cannot now object to being called upon to serve it. `Concensus tollit errorum.' Gibson v. State, 68 Miss. 241, 8 So. 329. It is immaterial that a longer period of time than that for which appellant was sentenced has elapsed since the sentence was imposed. While at large under this void order, to which he did not object, appellant was in the same situation that he would have been had he simply escaped from custody. In such case the sentence is not satisfied until it has been actually served. Ex parte Bell, 56 Miss. 282; 1 Bishop's Crim. Proced. (4th Ed.) 1384; Spencer v. State (Tenn.), 140 S.W. 597; State v. Abbott, 87 S.C. 466, 70 S.E. 6, 33 L.R.A. (N.S.) 112; Miller v. Evans, 115 Iowa 101, 88 N.W. 198, 56 L.R.A. 101, 91 Am. St. Rep. 143; Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am. St. Rep. 175; Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718."
It appears from this opinion that the Court held that during the period of suspension the defendant had the status of an escaped convict and could be arrested at any time. The Court discussed this power fully under the statutes now in force in Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581, and other cases cited — namely Kitrell v. State, 29 So.2d 313; Vinson v. State, 79 So. 316; State v. Kirby, 96 Miss. 629; Cooper v. State, 175 Miss. 718, 168 So. 53; State v. Jackson, 142 Miss. 745, 109 So. 724. The appellant seems to rely on this last case cited as authority for the contention which he makes. This contention is without merit as was held several times by this Court, especially in the case of Gabriel v. Brame, supra. In the Jackson case, 142 Miss. 745, 109 So. 724, the statute there under review disposed of punishment at all if certain conditions were met for a period of two years. In other words, the statute would only be a crime if the defendant failed to discharge his duties to support his wife and children. In discussing this phase of the case the Court held that it was the intention of the Legislature in enacting the criminal feature of that law to have no sentence imposed at all if the defendant complied with the requirements of the judge for a period of two years. The Court said: "The scheme of the Legislature clearly was to hold the conviction and sentence over the defendant for the purpose of enforcing the discharge of his civil duties to his wife or child, or both. If the defendant gives a bond and keeps faith for a period of two years, then no provision is made for the infliction of punishment for violation of Section 1, and none is contemplated in such case. In other words, at the end of two years, where a bond is given and lived up to, the offense is completely wiped out and satisfied. It is too manifest for doubt that the Legislature would not have enacted the first section except for the provisions in Sections 3, 4 and 5."
There is a case note upon the subject in 97 A.L.R. beginning at page 802 from which it would appear that different states have different rules, many of them being based on a statute of such state. However, a majority of the states hold that the court does not lose jurisdiction by failure to impose a sentence at the term where the plea of guilty or the verdict of conviction is entered. Among the courts so holding is the United States Supreme Court in the case of Miller v. Aderhold, decided in 1933, 288 U.S. 206, 77 L.Ed. 702, 53 S.C. 325, affirming 56 F.2d 152 and many other states cited in said case note.
At the May 1942 term of the Circuit Court of Lee County, appellant was indicted for grand larceny, and at a later day in the term the following order was entered by the court:
"Defendant herein being arraigned in open court on indictment wherein he is charged with the crime of grand larceny and for plea thereto say he is guilty as charged. It is further order that sentence be and is hereby deferred indefinitely on recommendation of the district attorney to be imposed in term time or in vacation as and when the court may see fit."
On an information filed by the district attorney returnable to the May 1947 term of the said court, appellant was brought before the court, and, at December 1947 term of the court, the sentence was imposed of two years in the penitentiary. On the same day appellant presented his petition in habeas corpus, praying judgment that he be released from custody on the ground that by reason of the delay of five years in imposing sentence, the court had lost jurisdiction and that the sentence lately pronounced was void. The court denied the petition and remanded appellant to the custody of the sheriff.
(Hn 1) There was no statutory authority for suspension of sentence in felony cases either in 1942 or at any time since. There is considerable authority, perhaps the weight thereof, which would sustain the contention of appellant; but the course of our decisions has been, on principle, to the contrary. We are of the opinion that the true rule is stated in Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702, citing one of our cases, that (Hn 2) a final judgment in a criminal case means sentence, and that (Hn 3) in a felony case an order purporting to entirely postpone sentence has the effect to keep the case in court until finally disposed of by the entry of the order of sentence. It may be that when appellant was brought in for sentence he could have moved to be allowed to withdraw his plea of guilty, but he made no such motion or request in this case.
Affirmed.