In re Spangler

406 P.2d 686, 146 Mont. 344, 1965 Mont. LEXIS 400

• Court: Montana Supreme Court
• Decided: October 19, 1965
• Docket: No. 11025
• Status: Published

Opinion

PER CURIAM.

Original proceeding.

Petition for writ of habeas corpus filed by Richard Spangler, an inmate of the Montana State Prison, appearing pro se. Petitioner alleges that he entered a plea of guilty to the crime of uttering and delivering a fictitious check in the district court of Missoula County and was sentenced to a term of six years in the State Prison; that such sentence is excessive in that section 94-2702, R.C.M.1947, provides a maximum sentence of five years for the crime.

To ascertain the truth of these contentions this court has secured certified copies of the records of the district court. From such records it appears that Spangler was charged by information with the crime of uttering and delivering a fraudulent check, a felony, and with a prior conviction of a felony; that upon his arraignment he entered a plea of guilty to the charge of uttering and delivering a fraudulent check, a felony, and further answered that the charge of prior conviction of a felony was true.

The provisions of section 94-4713, R.C.M.1947, then became applicable. That statute, in so far as here pertinent provides:

“Second offense, how punished after conviction of former offense. Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor as follows:

“2. If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years.”

There being no merit to the contentions of petitioner the writ is denied and the proceeding is dismissed.