People v. Lozano Díaz

88 P.R. 817

• Court: Supreme Court of Puerto Rico
• Decided: June 28, 1963
• Docket: No. CR-62-125
• Status: Published

Opinions

Mr. Justice Dávila

delivered the opinion of the Court.

Appellant having been convicted in 1958 by the Superior Court, Caguas Part, of the subsequent offense of burglary in the first degree, he was sentenced to serve from 2 to 15 years in the penitentiary. He appealed, but later he desisted from the appeal taken. When he had already served three years’ imprisonment, he filed a petition for habeas corpus in the Superior Court, San Juan Part. The habeas corpus was transferred to the Caguas Part for hearing. On the day set for the hearing, when appellant learned that the petition would be heard before the same judge who sentenced him, he informed that he desisted from his petition. Cf. Capeles v. Delgado, Warden, 83 P.R.R. 668 (1961). Thereupon the district attorney called the judge’s attention to the fact that when defendant was prosecuted he admitted the allegation on subsequent offense which appeared in the information, and that it was therefore mandatory to impose a minimum penalty of 10 years for the second offense. Section 56 of the Penal Code, 33 L.P.R.A. § 131. During this incident appellant was not assisted by counsel.¹ In view of district attorney’s allegation, the judge forthwith set aside the sentence imposed three years ago and imposed a new one of 10 to 15 years’ imprisonment. The following day the trial judge set aside the judgment rendered on the ground that appellant was not assisted by counsel at the act of pronouncing sentence, and ordered that he be summoned for a later date. It appears that he was assisted by counsel when the sentence was subsequently pronounced. The judge imposed from 10 to 12 years.

He appealed to this Court and we appointed an attorney to render him legal assistance.

The attorney designated raises the question that the new sentence is contrary to law. He maintains that the penalty imposed in 1958 could not be amended after he began to serve it.

In Santiago v. Jones, Warden, 74 P.R.R. 578 (1953), we stated the general rule on this matter as follows:

“The power of a trial judge to reconsider a sentence within a criminal prosecution is limited by certain rules which must be clarified before reaching a definite conclusion. The first rule is that the offender must be still under the custody of the trial court, without having undergone any part of the original sentence ; the second rule is that reconsideration does not lie unless there is a mistake in the name, in the punishment imposed, or in the application of the law to the proved facts in the prosecution, which might justify the reconsideration of the original sentence; and third that certain circumstances justifying the mitigation or aggravation of the sentence must be present.”

The foregoing states the general rule. It refers to valid sentences.

In Santiago the judge had imposed a valid sentence upon a defendant and after sentencing him the defendant escaped. After he was captured the judge reconsidered his first sentence and imposed a heavier one. It was held that he could do so.

In another case decided by this Court in which the general rule is stated, People v. Carbone, 59 P.R.R. 608 (1941), the penalty originally imposed was valid. Defendant having been charged with simple assault and battery, the judge convicted him and sentenced him to pay a fine of $2. Upon moving for reconsideration, he imposed $5. We held that the judge had abused his discretion and reinstated the original penalty.

The two preceding cases are cited in People v. Super. Ct.; González, Int., 81 P.R.R. 874 (1960), making reference to the rule stated therein; however, the facts under consideration involved the dismissal of certain informations.

In the compilation of decisions appearing in the Annotation Criminal Law — Changing Sentence, 168 A.L.R. 706, 719, there is set forth the rule as announced by a great majority of the cases:

“It is generally conceded that an invalid sentence — one that the court has no jurisdiction or power to impose — may be replaced at any time, either before or after execution of the sentence has begun or the term has ended,² by a sentence that is valid; in such a case the trial court has the power to substitute a legal and valid sentence for the former illegal one.”³

The case of Hayes v. United States, 249 F.2d 516 (D.C.Cir. 1957), cert. denied, 356 U.S. 914 (1958), makes a study of the different rules bearing on this matter. It is stated that if the original sentence is valid, such sentence may not be increased if execution thereof has begun. Reference is also made to the rule which we stated in People v. García, 83 P.R.R. 414 (1961). If defendant appeals or files a habeas corpus challenging an invalid sentence, it has been held that the court may increase the penalty upon passing new sentence. After stating these two situations, it maintains that if the sentence imposed does not conform to the penalty prescribed by law, the court has authority to pass a new one which conforms to law even though execution of the original penalty has begun. It considers the case of Bozza v. United States, 330 U.S. 160 (1947), which we followed in People v. García, and after analyzing it in the light of the facts presented therein, it continued:

“. . . The original sentence in Bozza was said to be an ‘invalid punishment’ in that it was for imprisonment alone and omitted any fine, though a fine also was required by the statute. It is true that only five hours elapsed before the correction was made and that in the interim defendant, though in a federal place of detention, had not yet been taken to a penitentiary; but this appears not to have been the basis for the ruling that double jeopardy did not attach. The Court said the error in the sentence was inadvertent, as was the error in the present case, and that, if the error could not be corrected in the manner there used, no valid sentence could be imposed at all, with the result that a prisoner whose guilt was established by regular verdict would escape punishment altogether. The Court continued:

“The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App. D.C. 10, 15, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do, and substitute [d] directions required by the law to be done upon the conviction of the offender.’ In re Bonner, supra, [151 U.S. 242] at page 260, 14 S.Ct. [323] at page 327, 38 L.Ed. 149. It did not twice put petitioner in jeopardy for the same offense.

“We think we must apply the Bozza ruling to the present case. The Act of July 18, 1956, specified the applicable penalty; none other could be validly imposed. True it is that defendant had begun to serve time; but as we read Bozza this time was not lawful punishment the augmentation of which, to make the sentence equal to the statutory penalty, constituted double jeopardy. We assume that to avoid double jeopardy the resentence must be made effective as of the date of the original sentence; that is, that the defendant is not required to serve again the time he has been imprisoned by reason of the invalid sentence.”

Thus, we see that the rule announced in Santiago is limited to the sentences which have been validly pronounced in pursuance of law. To the same effect: Reyes v. United States, 262 F.2d 801 (5th Cir. 1959); Orrie v. United States, 302 F.2d 695 (8th Cir. 1962); Mathes v. United States, 254 F.2d 938 (9th Cir. 1958); United States v. Krimsky, 207 F.Supp. 208 (D.C.S.D.N.Y. 1962); State v. Porks, 36 N.E.2d 42 (Ohio 1941); State v. Shilinsky, 81 N.W.2d 444 (Iowa 1957); People ex rel. Abrahamson v. Snyder, 81 N.Y.S.2d 538 (1948); 83 N.Y.S.2d 82 (1948); Annotation, Criminal Law—Changing Sentence, 168 A.L.R. 706-19; Note, The Judicial Finality of Criminal Sentence, 44 Harv. L. Rev. 967 (1931).

The rule is that a sentence which is contrary to law is null and void. The court has no power to pronounce it. “. . . [T]he penalty statutes are themselves jurisdictional, that is to say . . . they delimit the very power of the court.” De Benque v. United States, 85 F.2d 202 (D.C. Cir. 1936). If the law prescribes a minimum of 10 years, the judge cannot impose two. His action is void because it is contrary to the express statutory provision. And the judge may at any time correct the error in order to conform the sentence to the law. In State v. Peters, 366 P.2d 148 (N.M. 1961), cert. denied, 82 S.Ct. 849, the court stated as follows in considering a question similar to that under consideration:

“Appellant contends that the first sentence was merely irregular and, having been partially executed by him, the court was without jurisdiction to change the sentence. There is no merit to this contention. If the accused had been committed pursuant to a valid sentence, perhaps a further discussion would be warranted and possibly a different result would be reached; however, such is not the case. Sentences must be imposed as prescribed by statute, § 41-17-1, 1953 Comp. The first sentence was not merely irregular; being unauthorized by law, it was null and void, and Judge Swope was warranted in disregarding it as mere surplusage. State v. Lucero, 48 N.M. 294, 150 P.2d 119; Jordan v. Swope, 36 N.M. 84, 8 P.2d 788; In re Lujan, 18 N.M. 310, 137 P. 587. See Notes 69 A.L.R. 1177, 141 A.L.R. 1225 and 168 A.L.R. 706. Compare Ex parte DeVore, 18 N.M. 246, 136 P. 47. And a void sentence may be vacated even though it has been partially served. United States v. Bozza, 3 Cir., 155 F.2d 592; Bryant v. United States, 8 Cir., 214 F. 51, State ex rel. Cutrer v. Pitcher, 164 La. 1051, 115 So. 187.”

And in Mathes v. United States, 254 F.2d 938 (9th Cir. 1958), it is said: “It is well settled that a sentence which does not comply with the letter of the criminal statute is not only erroneous but void.” See, also, Johnson v. Hand, 367 P.2d 70 (Kan. 1961).

It is well to point out that even those sentences which conform to law at the time they were pronounced may be amended after entering upon service, if the amendment is favorable to the prisoner. United States v. Benz, 282 U.S. 304 (1931).

The case of Benz also disposes of the contention that the courts are without power to change the sentences after execution has begun. If they can be reduced after defendant has passed from the judicial to the executive custody, evidently there is also power to correct the sentences when the sentence imposed does not comply with the express provisions of the law, if there is no other legal impediment. Rule 35 of the Federal Rules of Procedure⁴ authorizes the federal courts to correct any illegal sentence at any time. If this were contrary to the Constitution because it violates the separation of powers — which is the basis of the theory of those who contend that there is no authority to do so because defendant has passed from the judicial to the executive custody — a rule of procedure could not authorize it. As stated in United States v. Krimsky, supra, that rule was a codification of existing law. It has been held that this is an inherent power of the courts. Lyons v. Goldstein, 47 N.E.2d 425, 429 (N.Y. 1943); People v. Hemmerich, 162 N.Y.S.2d 701 (1957). And if the defense of former jeopardy were applicable to facts such as those present in this case, a rule of procedure could not bar the application thereof.

In Estremera v. Warden, 74 P.R.R. 188 (1952), this Court had already adopted the doctrine to the effect that if the judgment is void because it does not conform to law, such judgment could be reconsidered at any time at the instance of the trial court itself.

In Estremera petitioner was sentenced on December 23, 1946, to serve from two to eight years’ imprisonment in the penitentiary. Later, on March 28, 1950, he was convicted in two cases after pleading guilty and sentenced to serve from two to eight years’ imprisonment in each case, to run concurrently with the penalty imposed in the first case. “On February 27, 1951 the District Court of San Juan, motu proprio, brought petitioner before court, assisted by an attorney, and in open court modified the sentences of March 28, 1950 ordering that the same be served concurrently with each other after the accused had served the term of from two to eight years’ imprisonment in the penitentiary, which was imposed on him on December 23, 1946.” This sentence was reconsidered the following day in order to reduce those corresponding to the last two cases to a term of one to three years, but always concurrent, and to be served after execution of the first sentence. In providing that the sentences imposed in the last two cases will be served after execution of the first, the judge based his action on § 3(e) of Act No. 108 of May 12, 1943, 34 L.P.R.A. § 1033. What the court actually did was to conform the sentence to the statutory penalty.

In deciding the question, we said:

“A modification of sentence which implies an increase in the punishment or penalty imposed on the accused lacks validity especially when he has begun to serve the original sentence. [Citations.] If in two sentences it has been determined that both shall run concurrently, a subsequent modification of these sentences to the effect that they shall be served consecutively lacks validity since it involves an increase in the punishment or in the penalty. [Citations.] Nevertheless, if the original sentences, or the penalties imposed by them, are null and void they can be later modified even if they increase the punishment or penalty. [Citations.] An invalid judicial action should not entail legal consequences and public policy should permit legal remedy of a sentence which is contrary to law. The right of a defendant not to be twice put in jeopardy for the same offense, should be protected as far as possible, but an accused should not be benefited by a judicial finding which is contrary to law.”

Having established the power of the courts to correct the sentences which are contrary to law, the trial court did not err in resentencing appellant. The time which he has served of the sentence imposed in 1958 shall be deducted.

The judgment will he affirmed.

Mr. Justice Santana Becerra dissented in a separate opinion in which Mr. Justice Belaval and Mr. Justice Her-nández Matos concur.

1 Defendant was entitled to be represented by counsel on that occasion in order, among other things, to be in a position to allege before the judge that reconsideration of the sentence of 1958 was not proper in law, but the fact is that he has had that opportunity before this Court. The fact that the question is raised before this Court for the first time does not prejudice him at all. Moreover, he could have raised the question when he was sentenced on reconsideration when the judge asked whether there was any impediment for passing sentence.

2 In a great majority of jurisdictions the law prescribes a term within which the courts act. In Puerto Eico the courts of first instance act during the entire year; there are no terms.

3 In 5 Wharton, Criminal Procedure, § 2191 (1957 ed.), the rule is stated as follows:

. . When a court has imposed a sentence which is void either because of lack of jurisdiction, or because it was not warranted by statute for the particular offense, this can be set aside and a valid sentence substituted at any time, either before or after execution of the sentence has begun .... If, however, the sentence originally imposed is within the power of the trial court and is merely erroneous or irregular, such sentence is not invalid or ‘void’ and comes within the applicable rule governing the making of a change in sentence after the defendant has entered upon its execution.” (Italics ours.)

4 The rule provides as follows:

“The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.”

Rule 186 of the new Rules of Criminal Procedure is similar to Federal Rule 36.