Opinion
No. 2483
May 1, 1951
Appeal from the District Court of Sweetwater County, Glenn Parker, J.
For the defendant and appellant the cause was submitted upon the brief and also oral argument of Albert E. Nelson and Kenneth G. Hamm, both of Rock Springs, Wyoming.
For the plaintiff and respondent the cause was submitted upon the brief of W.A. Muir and Walter J. Muir, both of Rock Springs, Wyoming, and oral argument of Mr. W.A. Muir.
POINTS OF COUNSEL FOR APPELLANTWhere the convicted defendant is at liberty and has not served his sentence if there be no statute to the contrary, he may be arrested as an escape, and ordered into custody upon the unexecuted judgment. Ex parte Collins, (Calif.) 97 P.2d 188.
It has been held that a court has inherent jurisdiction after passing sentence of imprisonment to suspend sentence, at least for a limited time. And this power is expressly given by section 6414, W.C.S. 1920, when an appeal is taken. And it is held that a court, having power to make an order suspending the execution of its judgment in a criminal case, necessarily, upon violation of such order, has the power to revoke the same and to enforce the original judgment by commitment. The authorities so holding have laid down this principle, it is true, in cases somewhat different than that in the case at bar, but we see no reason why the principle should not be applicable here. Genero v. Roach, 39 Wyo. 40.
We need not concern ourselves with the general rule upon the suspension of sentences as our statute authorizes a suspension in cases of this kind, and the courts are uniform in their holdings that the suspension of a sentence like the one under consideration does not conflict with the pardoning power of the governor. Martin v. People (Colo.) 168 P. 1171.
Probation was designed to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. Thus probation cannot be demanded as a right. Berman v. U.S. 82 L.Ed. 204.
Court may, after conviction, suspend imposition of sentence or execution thereof and place defendant on probation upon terms and conditions it deems best. U.S. v. Praxulis, 49 F.2d 774.
A parole is a matter of grace or favor to a convicted defendant, and when he accepts such parole, he does it subject to all the provisions fixed by the statute, and subject to all other conditions which may be imposed upon him by the authority granting such parole, which are not illegal, immoral or impossible of performance. Ex parte Mounce, 269 S.W. 385. The conditions imposed upon a defendant in order to secure a lighter sentence are not obligatory on him; he is not compelled to accept them, but, once accepted, he must obey them or suffer the consequences of disobedience. State v. Gleaton, 174 S.E. 12.
Any court sentencing a person for a misdemeanor may at the time of sentence remit the same or suspend such sentence in whole or in part, upon such terms as he may impose. State ex rel Clum v. Municipal Court of Cleveland 5 N.E.2d 489.
If it be conceded that the court had the power to make the order suspending the execution of the judgment, it would follow necessarily that, upon violation of the order, the court would have the right to revoke the order and commit the defendant. Ex parte Lujan, 137 P. 588.
POINTS OF COUNSEL FOR RESPONDENTSuspended sentences can be revoked only during the term of said sentence; after the expiration of the term the sentence is discharged and the district court is without power to revoke. Ex parte Bell, (Okla.) 47 P.2d 886.
In some jurisdictions the power of the court to grant a stay of execution is regulated by statute, and its exercise depends upon a compliance with the provisions thereof. 16 C.J. 1332. In many states, in which the courts have no inherent power to suspend the execution of sentences, power to do so has been conferred by statute, but suspensions may be ordered only in the cases and under the rules and conditions prescribed by the statute. 24 C.J.S. 172. In the absence of a revocation of the suspension of sentence or probation, accused generally is entitled to his discharge at the expiration of the term of his sentence. 24 C.J.S. 196-197.
It is fundamental law that the sentence in a criminal case should be definite and certain, and not dependent on any contingency or condition. Whenever the question has arisen and been passed on, it has been decided, practically without dissent, that in passing sentence on a person convicted of an offense the court has no power to provide that the imprisonment of the defendant shall begin at some future, indefinite time, depending on the happening of a contingency. The principle, as heretofore stated, is that the postponement cannot be made except on some ground conducive to the more perfect execution of the final process, or to the safeguarding and security of the prisoner's rights in respect of the particular litigation out of which has grown the judgment or sentence on which the execution is awarded. It cannot be stayed merely for the purpose of enabling the trial judge to hold the sentence in terrorem over the head of the prisoner to secure future good behavior. 8 R.C.L. 254.
An order committing a defendant to serve out a sentence previously pronounced but suspended, made after the time of imprisonment named in the sentence had expired, is void for want of jurisdiction. Re Leslie Webb, Wis. 27 L.R.A. 356.
In the absence of a permissive statute, the indefinite postponement of sentence upon one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term. Such postponement is, in effect, a discharge of the prisoner, and therefore ousts the court after the expiration of the term of further authority over him. Grundel v. People, 33 Colo. 191, 79 P. 1022.
OPINION
This case comes to the court in the form of an attempted appeal from part of a judgment rendered by the District Court of Sweetwater County in an action instituted by Louis Ruiz as plaintiff, petitioner, and at present respondent, against Mike Maher as Sheriff of said county as defendant and now appellant for a writ of habeas corpus.
The facts may be briefly outlined as follows:
On July 30, 1947, one Ray V. White filed a complaint before Justice of the Peace, T.F. Cole of Rock Springs, Wyoming, charging Ruiz with having committed the crime of assault and battery on July 26, 1947. On July 31, following, Ruiz was brought before the Justice aforesaid and the complaint was read to him and he entered a plea of "guilty" thereto. The Justice then sentenced him to serve 60 (sixty) days in the county jail but suspended the sentence until Ruiz, as the docket of the Justice states "comes in on a similar charge." On June 25, 1949, one Ray Iwamoto filed a complaint with said Justice Cole charging Ruiz with having committed the crime of assault and battery on June 25, 1949. A warrant was issued on this complaint and on June 27, 1949, Ruiz was again brought before the court of Justice Cole and the complaint was read to him. To this charge Ruiz, as before, entered a plea of "guilty." Thereupon the Justice of the Peace sentenced him to serve the sixty day jail sentence which had been suspended and also additionally to pay a fine of $90.00 or serve an additional ninety days in jail. The Justice then issued to the defendant, Mike Maher as Sheriff of Sweetwater County, a commitment which reads thus:
"THE STATE OF WYOMING | ss. COUNTY OF SWEETWATER |
To the Sheriff or Keeper of the Jail of Said County:
WHEREAS, Louis Ruiz, late of the said County, has been arrested on a complaint in writing, signed and sworn to by Ray Iwamoto alleging that said Louis Ruiz, on the 25th day of June, A.D. 1949, at and in said County did assault and battery, and said matter having been heard by me, T.F. Cole, a Justice of the Peace in and for said County, I do find the defendant guilty as above charged, and do sentence him to imprisonment in the jail of said County for a period of 60 days and 90 days or $90.00, and to pay a fine of ____ Dollars, and costs taxed at ____ Dollars, and in default of the payment of said fine and costs, he be confined in the jail of said County for a period of 150 days or 60 days and $90.00, from the date hereof, or until such fine and costs are paid.
THEREFORE, in the name of the State of Wyoming, I command you to receive said Louis Ruiz into your custody, in the jail of the County aforesaid, there to remain until he shall be discharged by due course of the law.
Given under my hand this 27th day of June, A.D. 1949.
/s/ T.F. Cole, Justice of the Peace."
Ruiz paid the $90.00 fine and on June 30, 1949, filed in the district court of Sweetwater County a petition for a writ of habeas corpus insisting that the 60 day jail sentence was illegal and that he was unlawfully imprisoned and restrained of his liberty. The sheriff of said county filed an answer to this petition stating among other things that he was holding Ruiz by virtue of the commitment aforesaid and that Ruiz had not served the jail term as provided in that commitment. Plaintiff filed a reply to the answer aforesaid.
A hearing on this matter was had on December 14, 1949, and thereafter on January 27, 1950, the district court entered a judgment which reads after sundry recitals of appearance of counsel, evidence taken and argument had, that the court found:
"(1) That petitioner was improperly sentenced as to the sixty days imprisonment in the County Jail ordered on July 31, 1947, and reinvoked by Justice of Peace, T.F. Cole, on June 27, 1949.
"(2) That petitioner was properly `fined ninety dollars . . . or ninety days in jail . . . on June 27, 1949.'
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:
"(1) That the petitioner, Louis Ruiz, pay forthwith the sum of Ninety and no/100 Dollars ($90.00) to the County of Sweetwater, State of Wyoming, in accordance with the fine of Justice of Peace, T.F. Cole, levied on June 27, 1949, together with costs in said court.
"(2) That the sixty days imprisonment in the County Jail ordered on July 31, 1947, and reinvoked on June 27, 1949, be and the same is hereby cancelled and voided.
"(3) That one-half of the costs of this action be paid by plaintiff and that one-half of the costs be charged to the County of Sweetwater, Wyoming.
"(4) That unless plaintiff shall comply with Par. 1 of this order within ten (10) days of the date hereof, then and in that event the sheriff shall forthwith take plaintiff into custody and hold him for ninety (90) days in the County Jail in accordance with the judgment of the Justice Court entered herein on July 31, 1947. (June 27, 1949).
"Each of the parties hereto except to the above findings and judgment, and each is hereby granted an exception."
From the paragraph of this judgment which was adverse to the defendant and numbered (2) the sheriff has prosecuted this appeal.
In our case No. 2462, Geyer v. N.E. Tuck, Sheriff of Laramie County et al, decided at this term (April 10, 1951) we held that an appeal would not lie from a judgment rendered in a habeas corpus proceeding where the petitioner had been discharged after hearing had upon the application for and issuance of the writ. That ruling is decisive of the case at bar and this appeal should be dismissed, for it is apparent that the petitioner has paid the $90.00 fine ordered by the Justice of the Peace and affirmed by the judgment of the district court of Sweetwater County, and the 60 day jail sentence has been declared by that judgment to be illegal and void. It follows therefrom that the petitioner was entitled to his release from the sheriff's custody.
Appeal Dismissed.
KIMBALL, C.J., and BLUME, J., concur.