State v. Alexander

386 P.2d 411, 15 Utah 2d 14, 1963 Utah LEXIS 249

Opinions

CROCKETT, Justice.

Defendant appeals from a purported “corrected” judgment and, sentéripé, of the Second District Court that-he serve.a-term of not to exceed five years in the state prison for the offense of issuing a check against insufficient funds. His contention is that the court had previously sentenced him to serve a term of one year for the same offense, which he has served, and that the later and different judgment and sentence was invalid.

The offense of issuing a check without sufficient funds to cover it is unusual in that the statute (Sec. 76-20-11, U.C.A.1953, Supp.) allows the court the choice of two alternative punishments: a sentence in the county jail for not more than one year, or in the state prison for not more than five years.

The defendant pleaded guilty to the charge. At the time for sentence, after some questioning and discussion between the judge, Hon. John F. Wahlquist, and counsel for the defendant and for the State, the court concluded the matter by stating thus:

“I sentence you to serve a term in the Utah State Prison not to exceed one year.”

Pursuant to the above sentence a commitment issued committing the defendant to the state prison for one year. The document is captioned “Judgment, sentence and commitment” and it carries an additional comment, apparently inserted some time after it was first made, with a different typewriter, that “the last four years of the ‘not to exceed five years’ contemplated by statute is hereby suspended as an act of mercy because of the great injustices that were suffered by the defendant in the past.”

After the defendant had served the specified one year in the state prison, he requested his release. This was refused and he was taken before another judge of the Second District Court, Hon. Parley E. Nor-seth, for the imposition of a “corrected” sentence. The judge then expressed the opinion that he could change the sentence to one in the state prison for not to exceed five years, but that he had no right to correct the sentence as to the institution.

Footnotes

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1-a He thereupon pronounced a “corrected” sentence that the defendant serve a term of not to exceed five years in the state prison, from which this appeal is taken.

At the time of the original sentence, Judge Wahlquist, for his own reasons which are not here our concern, did not choose to sentence the defendant in accordance with either of the alternatives provided by the statute, that is, to one year in the county jail, or for not to exceed five years in the state prison. Instead he fashioned a combination of the two in sentencing defendant to serve one year in the state prison, and issued the commitment described above in furtherance of that purpose. In view of the difficulty and uncertainty this sentence has given rise to when considered in connection with the statute authorizing the penalty for this offense, it is necessary and proper to look to the background circumstances disclosed by the record to see what was intended¹ and what the ends of justice demand.

From the statements of Judge Wahlquist it is unmistakable that due to various considerations, including the fact that the defendant had already been in the Weber county jail for three months, it was the judge’s decision and his clearly expressed intent that the defendant should serve only the term of one year, rather than the five-year term; and that to carry out that purpose he in fact pronounced judgment and sentence that the defendant serve a term of “not to exceed one year.” The sentence for that term was a lawful and proper one for the crime charged. Of lesser and subordinate importance is that it designated the state prison instead of the county jail as the place it should be served. This was an impropriety which could be corrected at the instance of either the defendant or of the State, but it did not invalidate the sentence.²

It appears that in all likelihood Judge Norseth would have corrected the sentence as to the place of incarceration had he not acted under the erroneous assumption that he could only correct the sentence as to the time to be served. We are aware of no justification for that assumption. As we have heretofore indicated, where a judge has based his act on an erroneous conception of the law, it may be corrected.³ It is our opinion that fairness to the defendant requires that correction be made as to the place of incarceration.⁴ It would be repugnant to the most elemental principles of justice if the State could wait until after the defendant has fulfilled the demands of the judgment by serving the time required, then declare the sentence invalid on the ground that it designated the wrong prison and impose another and longer sentence on him for the same offense. When one convicted of a crime has been sentenced and has served the term as specified, even though in the wrong place of incarceration, he cannot thereafter be resentenced to another term for the same offense.

We see no merit in the State’s attack on the timeliness of the appeal. Our Code of Criminal Procedure (Sec. 77-39-3 U.C.A.1953) provides that:

“An appeal may be taken by the defendant : (1) From a final judgment of conviction. (2) From an order made, after judgment, affecting the substantial rights of the parties.”

The purported second judgment and sentence was clearly an attempt to render a judgment in the criminal proceeding which if valid would have affected defendant’s substantial rights. It was therefore ap-pealable under the statute just quoted and the appeal was taken within 60 days as permitted by the criminal code.

This case is remanded with directions for the district court to correct the sentence for the defendant to serve not to exceed one year in the county jail; and he having served the time required, to be'ordered released.

McDONOUGH and WADE, JJ., concur. GALLISTER, J., concurs in the result.

. This is based on the judge’s comment, Record Page 43: “So in my opinion there is no question but what this court at this time has to resentence the defendant to serve not more than five years in the state penitentiary. If I pursued that one step further, if I attempt to say that lie’s to serve in the county jail for one year, then I would have to make that retroactive and discharge the defendant. Under the facts and circumstances of this case, I do not feel that this court can do that legally.”

1

. See Nickle v. Reeder, 144 Colo. 593, 357 P.2d 921; State v. Williams, 30 Wash.2d 18, 190 P.2d 734; Ex parte Bailleaux, 26 Wash.2d 60, 173 P.2d 122. See also 24 C.J.S. Criminal Law § 1585.

2

. For authority that confinement in some place other than that designated by statute does not vitiate the sentence, see Ex parte Tani, 29 Nev. 385, 91 P. 137, 13 L.R.A.,N.S., 518. See generally 24 C.J.S. Criminal Law, § 1581.

3

. See Walker v. Peterson, 3 Utah 2d 54, 278 P.2d 291.

4

. That generally defendant should be given advantage of favorable aspect of sentence where there is ambiguity, or uncertainty, see 24 C.J.S. Criminal Law, § 1585, p. 580, notes 11, 11.5 and cases there cited.