State v. Loux

• Citation: 69 Wn.2d 855,420 P.2d 693
• Decision Date: 01 December 1966
• Docket Number: 38685,Nos. 38482,s. 38482
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Richard E. LOUX, Appellant.

Page 855

69 Wn.2d 855

420 P.2d 693

The STATE of Washington, Respondent, v. Richard E. LOUX, Appellant.

Nos. 38482, 38685.

Supreme Court of Washington, Department 1.

Dec. 1, 1966.

Maslan & Hanan, J. Stephen Funk, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Neal J. Shulman, Deputy Pros. Atty., Seattle, for respondent.

SOULE, J. ^*

In 1961 the defendant was in custody on a charge of attempted unlawful taking of an automobile. While awaiting disposition of that charge he twice escaped from the King County jail, and as a consequence was charged with two counts of unlawful escape. He was sentenced on the attempted taking charge and was thereafter presented to the court for disposition of the escape charges. Before going to court on February 26, 1962, the defendant and his then counsel reached an understanding with the prosecuting attorney that, upon entry of a plea of guilty to count 2, count 1 would be dismissed and the prosecutor would recommend a minimum term of three years to run concurrently with the previous sentence with credit to be given for time already spent in custody.

The plea was taken and the matter put over to the next day for sentencing. The record reflects that on the next day, February 27, 1962, before sentencing, the deputy prosecuting attorney disclosed to defense counsel and to the court that he had just become aware of the provisions of RCW 9.92.080 which requires sentences under circumstances such as these to run consecutively. After some colloquy defense counsel then said:

I still think, however, that it can still be within the jurisdiction of the court to have the sentence run concurrently inasmuch as especially neither the prosecuting attorney, and of course neither will defense counsel offer any objection to the concurrency of the terms.

The sentence was then imposed to run concurrently and the defendant admits that the prosecuting attorney adhered to his part of the agreement so far as the recommendation for a three year minimum sentence is concerned and in dismissing count 1.

Although the board of prison terms and paroles fixed the minimum terms to run consecutively rather than concurrently, nevertheless, the total minimum originally contemplated was attained because a one year minimum term was fixed on the attempted taking case and an 18-months minimum was fixed on the escape charge. In fixing the minimum on the escape charge a clear reference was made to King County cause No. 35862, the attempted taking. This action of the board was taken on May 14, 1962. Had the defendant then felt imposed upon for the reasons which he now asserts, he had ample time to move against the judgment and the action of the board.

But for events which subsequently transpired, defendant would have been released within the time which he had in mind at the time of the sentencing. However, because of certain escape efforts on his part at the penitentiary his minimum term was thereafter lengthened.

Feeling aggrieved he applied for a writ of habeas corpus and on September 28, 1965, the matter was heard. As a result an order was entered directing his return to King County for resentencing.

He was returned and at the time of presentation for resentencing moved for leave to change his plea of guilty to that of not guilty. The motion was denied and sentence was imposed as of December 17, 1965.

We first examine the nature of the last sentence as it relates to the original one.

When a judgment and sentence is legal in one part and illegal in another, the illegal part, if separable, may be disregarded as surplusage and the legal part enforced. State ex rel. Clark v. Hogan, 49 Wash.2d 457, 303 P.2d 290 (1956); In re Clark, 24 Wash.2d 105, 163 P.2d 577 (1945). See also In re Mullen v. Cranor, 42 Wash.2d 310, 254 P.2d 1038 (1953), cert. denied, 347 U.S. 978, 74 S.Ct. 791, 98 L.Ed. 1117 (1954).

In State v. Luke, 42 Wash.2d 260, 262, 254 P.2d 718 (1953), cert. denied, 345 U.S. 1000, 73 S.Ct. 1146, 97 L.Ed. 1406 (1953), we considered the legal effect of a sentence which provided that it was to run concurrently, thereby conflicting with RCW 9.92.080. What we said there we deem controlling here:

But the court exceeded its authority when it ordered that the sentences imposed in each cause be served concurrently, the convictions in both causes having been had before sentence was pronounced for either. Being in excess of the authority of the court, these provisions of the judgments in each cause are illegal. Williams v. McCauley, 7 Wash.2d 1, 7, 108 P.2d 822 (1940).

The state contends that, if the provisions in question are illegal, the judgments and sentences are not void. It argues that these provisions are separable from the rest of the judgments and sentences and may be disregarded and the remainder, or legal portions enforced. In re Gossett v. Smith, 1949, 34 Wash.2d 220, 222, 208 P.2d 870, and cases cited. We agree with this contention. The provisions regarding the concurrent service of the sentences are directory and are but a mandate regarding their execution.

Nor can defendant prevail upon his argument that the provisions for the concurrent service of his sentences were included in the judgments with his consent or upon the motion of the state. Regardless of the desires of the parties, the court was not authorized to grant such an order. The quoted statute is mandatory and became a part of the judgments the same as if the court had complied with it. Defendant is now in the identical position in which he would be either if the court had done what the statute requires or if he were to be resentenced. (Italics ours.)

Here, as in that case, the consent of the parties and concurrence of the court could not serve to bind the state of Washington in the face of the provisions of the statute. The portion of the judgment and sentence which was in excess of the court's jurisdiction can not be regarded, but in disregarding it, it is not necessary to strike down as void the balance of the judgment and sentence.

We have heretofore considered the problem created when an erroneous sentence has been given. We have indicated that the court has the power and duty to correct the error upon its discovery. State ex rel. Sharf v. Municipal Court, 56 Wash.2d 589, 354 P.2d 692 (1960); State v. Williams, 51 Wash.2d 182, 316 P.2d 913 (1957); In re McNutt v. Delmore, 47 Wash.2d 563, 288 P.2d 848 (1955), cert. denied, 350 U.S. 1002, 76 S.Ct. 550, 100 L.Ed. 866 (1956).

Return for resentencing is an appriate procedure. In re Dill v. Cranor, 39 Wash.2d 444, 235 P.2d 1006 (1951). The opening of the judgment for this purpose does not render the original judgment a nullity, State v. Williams, supra.

We hold that the sentence of December 17, 1965, was not a new sentence, but rather a correction of the old one and the time when that sentence started to run was June 8, 1963, the date when defendant was paroled on King County cause No. 35862. State ex rel. Mason v. Superior Court, 44 Wash.2d 67, 265 P.2d 253 (1954); In re St. Peter v. Rhay, 56 Wash.2d 297, 352 P.2d 806 (1960). To obviate any possible inference that these further proceedings might have the effect of increasing the original sentence by postponing the terminal date thereof, the words 'nunc pro tunc February 27, 1962' should have been added and we now order that they be so added.

At the time of the original sentencing the trial judge apparently had some private doubts as to whether or not the proposed sentence would be effective insofar as the...