State v. Phillips

581 P.2d 1173, 99 Idaho 354, 1978 Ida. LEXIS 427

• Court: Idaho Supreme Court
• Decided: February 9, 1978
• Docket: 12618
• Status: Published

Opinions

SHEPARD, Chief Justice.

This is an appeal from orders of the trial court imposing sentence upon appellant following his plea of guilty to a charge of armed robbery.

The trial court orally sentenced appellant as follows:

“It is the sentence of the court that the Defendant be committed to the Board of Corrections at the state penitentiary for a period of time not to exceed 15 years. The actual time to be served, if any, will be determined by other authorities in accordance with Idaho law; provided, however, that the execution of this sentence be, and it is herewith, suspended. The Defendant is placed on probation, the first 120 days of which will be spent with the Idaho Board of Corrections at its North Idaho Correctional Institution.”

Thereafter, the trial court entered a written order of commitment which we construe to be the written judgment and sentence. However, therein the trial court did not purport to suspend the sentence and place appellant on probation. Instead, the written order of commitment sentenced appellant to a 15 year term subject to retained jurisdiction in the trial court for 120 days pursuant to I.C. § 19-2601(4). Thereafter, at the request of the Board of Corrections and as authorized by I.C. § 19-2601(4), custody of the appellant was retained for an additional 60 days. At the termination of that period the trial court relinquished its jurisdiction thereby remitting the appellant to serve the 15 year sentence.

Appellant raises two issues on this appeal. First, he argues that the trial court’s oral sentencing placed him on probation subject to a condition of serving 120 days confinement at the North Idaho Correctional Institution. See Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964). Having served that 120 days, appellant claims a right to release as a probationer. Appellant also contends that he was entitled to a hearing when the trial court relinquished its retained jurisdiction. That assertion is answered in State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977), which held that no such hearing is required.

However, we deem resentencing to be necessary since the trial court’s order, rendered orally, is ambiguous to the point that we are unable to clearly ascertain its intent. We are unable to determine whether, as in Franklin v. State, supra, appellant was placed on probation subject to a period of incarceration or if the trial court imposed sentence and retained jurisdiction pursuant to I.C. § 19-2601(4). Regrettably, the trial court’s oral sentence is susceptible of either construction. The case at bar is therefore distinguishable from State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977), wherein it was held that the sentence imposed by the trial court created a probationary status rather than a withheld judgment or retained jurisdiction. Here, however, the ambiguity contained in the oral sentence prevents such determination.

Although urged by respondent State, we decline to rely upon the written judgment and sentence. I.C.R. 32 and 43 make clear that the defendant must be afforded certain rights at the sentencing stage. If we were to rely upon the written sentence here, those rights could be construed to have been denied the appellant, i. e., the right to be personally present, to be represented by counsel, to speak in his own behalf and to present information in mitigation. Although also urged by respondent State, the written judgment cannot be construed as the correction of an illegal sentence pursuant to I.C.R. 35 since either interpretation of the sentence orally imposed would be lawful had either been clearly and unambiguously imposed. We also note the inapplicability of I.C.R. 36 since the error here was judicial in nature involving the exercise of discretion, and I.C.R. 36 permits correction of clerical errors but not judicial errors. United States v. Stevens, 548 F.2d 1360 (9th Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977).

Having found that the trial court’s oral sentence was ambiguous, it follows that we reject appellant’s contention that the trial court unequivocally imposed probation. In view of our holding and since we remand for resentencing, consideration of appellant’s other assignment of error is unnecessary.

Upon remand the trial court shall resentence appellant and if a sentence of confinement is entered, “credit” shall be given for such time as has already been served. The trial court may also consider events “that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Such information may come to the judge’s attention * * * from a new presentence investigation, from the defendant’s prison record, or possibly from other sources.” North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969) [citation omitted].

Reversed and remanded.

McFADDEN, DONALDSON, and BAKES, JJ., concur.

4 . Cottonwood rated Phillips’ problem primarily as immaturity. A teacher there said:

He has been able to make a turn around as best he can. He is still immature, but I feel five years on the main yard would not benefit this individual. He is at the point where there is a 50-50 chance that he might be salvaged. He has not had any major disciplinary reports. His past record is mainly composed of traffic violation. 1 recommend if he be placed on probation that part of his plan include that he stay employed and his associations and driving be restricted.