Petition of Jerald A. Amor

389 P.2d 54, 143 Mont. 305, 1963 Mont. LEXIS 57

Opinion

PER CURIAM.

The petitioner herein, an inmate of the Montana State Prison, was convicted by a jury in Lewis and Clark County of the crime of rape on January 28, 1960, the Honorable Victor H. Fall, District Judge, presiding.

His petition is for a writ of error, coram nobis, predicated on sections 94-7813, 94-7814 and 94-7831, R.C.M.1947.

Petitioner fails to recite a single instance where the trial judge ignored these statutes, despite his contention that such was the fact.

Sections 94-7813 and 94-7814, supra, provide that the court may hear testimony upon the oral suggestion of either party, after a plea of guilty, either in aggravation or mitigation of punishment. The question as to the extent of the punishment is vested in the sound discretion of the trial judge. See Kuhl v. District Court, 139 Mont. 536, 366 P.2d 347.

Where, as here, there is nothing to indicate that either party made such suggestion, and neither was the court moved to exercise its own discretion, hence, the court was under no legal obligation to do so.

Since the petition discloses no grounds for issuance of the writ, we dispense with our practice of referring it to the district court and order it dismissed.

It is so ordered.

MR. JUSTICE JOHN C. HARRISON deeming himself disqualified takes no part in this opinion.