State v. Salway

487 N.W.2d 621, 1992 S.D. LEXIS 101, 1992 WL 171402

Opinions

WUEST, Justice.

Carmen Louise Salway (Salway) pled guilty to one count of forgery, SDCL 22-39-36, and to being an habitual offender, SDCL 22-7-7.

At the sentencing hearing the trial court said, in part,

It will be the judgment and sentence of the court that you be and you are hereby sentenced to serve seven years ...

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Your sentence of- seven years consists of five years on the forgery and two years on the habitual offender.

The written judgment and sentence simply reflects a seven year penitentiary term after Salway’s conviction of forgery and being an habitual offender.

On appeal Salway is contending that her sentence is cruel, unusual, and a denial of due process. We do not reach this issue, however.

It is settled law in South Dakota that the oral sentence is the only sentence and the written sentence must conform to it. State v. Cady, 422 N.W.2d 828 (S.D.1988). It is only when the orally pronounced sentence is ambiguous that the written sentence is used to clarify the ambiguity. State v. Munk, 453 N.W.2d 124 (S.D.1990).

In Salway’s case, the oral sentence is not ambiguous. The trial court sentenced Sal-way to a five-year penitentiary term for forgery

Footnotes

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* and a two-year term for being an habitual offender. As such, the trial court misapprehended the direct impact of the habitual offender charge. SDCL 22-7-7 et seq.

The habitual offender statutes are not separate offenses for which a defendant may be separately, sentenced. Cady, supra; State v. DeMarsche, 68 S.D. 250, 1 N.W.2d 67 (1950); Ex Parte Watt, 73 S.D. 436, 44 N.W.2d 119 (1950); State v. Upchurch, 101 Wis.2d 329, 305 N.W.2d 57 (1981). Rather, being a habitual criminal enhances the punishment for the principal crime to a higher class of felony. Cady, supra; SDCL 22-7-7 et seq. Therefore, the trial court erred by sentencing Salway separately on her conviction as a habitual criminal. The proper procedure is the enhancement of the forgery from a Class 5 felony to a Class 4 felony. SDCL 22-39-36; SDCL 22-7-7, SDCL 22-6-1(7), (6).

Salway makes no claim that her forgery and the habitual criminal convictions are invalid. Because the convictions are valid, “the sentencing court’s power is exhausted only by pronouncing a valid judgment.” Application of Abelt, 82 S.D. 308, 313, 145 N.W.2d 435, 437 (1966). Because the punishment ordered in this ease was legally impermissible, resentencing is required. Upchurch, supra. “This is the generally accepted rule which applies when a defendant has received an unlawful sentence.” Id 305 N.W.2d at 61. A. Campbell, Law of Sentencing § 16:7 (2d ed., 1991).

Therefore, the judgment appealed from is affirmed in part and reversed and remanded in part for resentencing in accordance with this opinion.

MILLER, C.J., and SABERS and AMUNDSON, JJ„ concur. HENDERSON, J., concurs in result.

Forgery is a Class 5 felony punishable by five years imprisonment. A $5,000 fine may be imposed. SDCL 22-39-36; SDCL 22-6-1(7).