Summary
In Stang Tank Line, the trial court failed to impose the mandatory sentence for operating a truck in excess of the statutory weight limit, imposing instead a reduced penalty at the recommendation of the district attorney and arresting officer.
Summary of this case from State v. LockeOpinion
June 6, 1953 —
July 3, 1953.
ERROR to review a judgment of the municipal court of Brown county: DONALD W. GLEASON, Judge. Reversed.
For the plaintiff in error there were briefs by the Attorney General, and Stewart G. Honeck, deputy attorney general, and William A. Platz. assistant attorney general, and oral argument by Mr. Honeck and Mr. Platz.
For the defendant in error there was a brief and oral argument by Michael D. O'Hara of Menominee, Michigan.
A driver of the Stang Tank Line was arrested, charged with having a truck which, with its load, exceeded the statutory weight limit as provided by ch. 85, Stats. The defendant waived the taking of testimony and pleaded guilty. Thereafter the trial court conducted an inquiry which established that the gross weight exceeded the statutory limit by 11,180 pounds. By virtue of sec. 85.91(2b)(b), Stats., the defendant is liable to pay, in addition to a flat fine of $50, a penalty of 10 cents a pound for the excess. The judge correctly calculated the total penalty at $1,241.13. The district attorney and the arresting officer considered that there were extenuating circumstances, without saying what such circumstances were, and recommended that a part of the penalty be remitted. The court, then, announced the following judgment:
"It is the judgment of the court and the sentence of the law that you, Stang Tank Line, be punished by paying a fine of $50 and the costs of this prosecution taxed at $11.13, plus a poundage penalty of $300, and the balance of the poundage penalty is suspended upon recommendation of the arresting officer and the district attorney."
The defendant paid the amount so set and was not required to pay the remaining $880 which the statute demanded. The state then obtained a writ of error under sec. 358.12, Stats., the material parts of which are:
"358.12 State's appeal. (1) A writ of error or appeal may be taken by the state from any: . . .
"(c) judgment and sentence or order of probation not authorized by law;
" (d) judgment adverse to the state, upon questions of law arising upon the trial, with the permission of the trial judge, in the same manner and with the same effect as if taken by the defendant. A judgment acquitting the defendant of all or part of the charge shall be deemed adverse to the state."
The defendant protests that the suspension of the poundage penalty is a matter within the discretion of the trial court and, further, that to sustain the writ would subject the defendant to second jeopardy of punishment, contrary to sec. 8, art. 1, Wis. Const.
In Drewniak v. State ex rel. Jacquest (1942), 239 Wis. 475, 1 N.W.2d 899, we held that in Wisconsin trial courts do not have jurisdiction to impose sentences and then stay their execution. We quoted at length from the opinion of the court in Ex parte United States (1916), 242 U.S. 27, 37, 39, 37 Sup. Ct. 72, 61 L. Ed. 129, adopting the principle there announced, that if such right in the trial court was recognized the court would impair the constitutional division of power between the branches of government, for not only would the court be repealing legislative enactments setting penalties for crime, but would be usurping the pardoning power conferred by the constitution upon the executive alone. We said, in Drewniak v. State ex rel. Jacquest, supra (p. 484):
"It is considered that this court is committed to the doctrine that courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself."
Defendant points out that in the present case a sentence was pronounced and no part of the execution of that sentence was suspended; the suspension went to the pronouncing of the legal sentence, not to the execution of the sentence pronounced. This is so, but there is no difference in the principle and no difference in the result. The court can no more usurp the legislative and executive fields by refusing to impose the prescribed sentence than it can do so by imposing such sentence and then suspending or remitting all or a part of the execution. The defendant's primary objection to plaintiff's demand must be denied. We hold that the trial court's sentence, as set forth in the judgment above quoted, was outside its discretion and the sentence so pronounced is not merely error but is void.
We next reach defendant's contention that any action returning this cause for the correction of the sentence is a violation of sec. 8, art. I, Wis. Const., which declares that no person for the same offense shall be put twice in jeopardy of punishment. In State v. Witte (1943), 243 Wis. 423, 10 N.W.2d 117, we held that sec. 358.12(8), Stats. 1941, did not violate such constitutional protection. This section now appears as sec. 358.12(1)(d). The present case comes more nearly under par. (c) of such section but no reason occurs to us why par. (c) should be an unconstitutional second jeopardy if par. (d) is not. On the authority of the Witte Case, supra, we hold that such par. (c) is not an unconstitutional legislative enactment. The constitutionality of the right of the state to have a writ of error on this ground being thus established, we come to the question of whether there is second jeopardy of punishment if the writ is determined in the state's favor and our mandate returns the defendant for sentence in accordance with the statute, or if we exercise such sentencing power ourselves as provided by sec. 251.17, which reads:
" Proceedings in criminal cases on reversal. Whenever any judgment in a criminal action shall be removed by a writ of error to the supreme court and such court shall reverse such judgment because of any defect, illegality, or irregularity in the proceedings in such case subsequent to the rendition of the verdict of the jury therein it shall be competent for the supreme court either to pronounce the proper judgment or to remit the record to the court below in order that such court may pronounce the proper judgment."
Sec. 251.17, Stats., was formerly known as sec. 2412, R. S. 1889, and was construed in McDonald v. State (1891), 79 Wis. 651, 48, N.W. 863. McDonald was convicted of assault and robbery, armed, for which there was a penalty of imprisonment in the state prison for ten years. The trial court sentenced him to such imprisonment for fourteen years and McDonald procured a writ of error. The sentence was obviously void and could not stand, whereupon McDonald made the same argument that the present defendant makes, namely, that the imposition of the correct sentence under the authority of sec. 251.17 would be unconstitutional and void as subjecting McDonald to be twice put in jeopardy for the same offense. We held, pages 652, 653, that there was no second jeopardy in such procedure. The McDonald Case has been frequently cited for its definition of jeopardy in connection with second trials. It does not appear to have been cited to the matter of resentencing nor does the question concerning resentencing as a second jeopardy appear to have been raised again until now. The McDonald Case is consistent with the intent of secs. 358.12 and 251.17 and remains the law on this subject. The decision of the Wisconsin court accords with the authority of 3 Am. Jur., Appeal and Error, p. 717, sec. 1216:
" Remand for Sentence. — At common law, on the theory that the jurisdiction of a court of error was confined exclusively to the determination whether error existed, and if it found error its duty was to reverse and discharge the prisoner, the reviewing court had no power when a conviction was proper, but an improper sentence or judgment was rendered thereon, to remand the case to the trial court for the rendition of a proper judgment. This doctrine, however, was at an early date abrogated by statute in England, and the rule prevails, generally by virtue of statute, in many jurisdictions in the United States that the reviewing court, in case the conviction was valid and the sentence or judgment rendered was invalid, may remand the case to the trial court for the rendition of the proper sentence or judgment, even though a substantial part of the original sentence has been served. Such resentence does not, according to the weight of authority, put the defendant in jeopardy twice, or constitute a second punishment for the same offense."
We conclude that the trial court committed error in failing to impose upon the defendant the penalty provided by sec. 85.91(2b)(b), Stats.; that the sentence it did impose is void; and that the judgment must be reversed and the cause remanded for correction of such error.
By the Court. — Judgment reversed, and cause remanded with instruction to the trial court to enter judgment in favor of plaintiff and against the defendant for the penalty provided by sec. 85.91(2b)(b), Stats., conformably to this opinion, and for further proceedings according to law.