Belt v. Turner, 11936
| Decision Date | 06 April 1971 |
| Docket Number | No. 11936,11936 |
| Parties | d 380 Albert Nolan BELT, Plaintiff and Appellant, v. John W. TURNER, Warden, Utah State Prison, Defendant and Respondent. |
| Court | Utah Supreme Court |
Richard C. Cahoon, Salt Lake City, for plaintiff and appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Harry E. McCoy, Asst. Attys. Gen., Salt Lake City, for defendant and respondent.
We granted a rehearing in this case so as to be able to consider the possible effect on other prisoners who may now be incarcerated in the Utah State Prison and who were sentenced after a statute amended the penalty by making it less severe for a crime which was committed prior to the amendment.
As to those defendants who were sentenced prior to the amendment, the statute gives no aid. 1
The appellant asserts that the Miller case is controlling here, and the dissenting justices in the prior decision thought that we must overrule State v. Miller if we do not reverse our holding in the instant matter.
The power of the legislature to repeal or amend the penalty to be imposed for crime is not a matter of judicial concern. It is a part of the sovereign power of the state, and it is the exclusive right of the legislature to change or amend it; and if the amendment becomes effective before a final judgment of sentence is pronounced, the amendment controls the punishment to be meted out, provided it does not raise a constitutional question of being an ex post facto law by reason of increasing the punishment. If the state wishes to declare a lesser penalty for a crime, it may do so, and no constitutional question would be involved.
The general law set out below is taken from 21 Am.Jur.2d, Criminal Law, Sections 577 and 578:
The power of a legislative body with respect to punishment for crime is practically unlimited, and is controlled only by constitutional provisions. Subject to this qualification, the legislature may fix the punishment for crime as it sees fit, and where a particular punishment is prescribed, no other may be imposed.
Statutes are frequently adopted that change the nature, degree, or kind of penalty or punishment to be imposed for the commission of a criminal act. Thus, the mode or place of confinement of a prisoner, the length of imprisonment, or the time or method of execution may be altered by statute. Provisions of this kind are valid, except as they operate to increase or enhance punishment for crimes committed before their enactment, in which case they are invalid as ex post facto legislation.
Punishment must be inflicted according to the law at the time of the judgment, when subsequent to the judgment a statute is enacted mitigating the punishment for the crime. * * *
State v. Miller is unlike the present matter in that sentence had already been pronounced before the statute was amended. The judge there followed the law in force at the time of judgment, and so we affirmed. In the instant matter the statute was amended before the judgment of sentence was imposed, and the judge followed the law in force and effect at that time. 2 We do not find any conflict between the instant matter and the Miller case and, therefore, reaffirm the prior decision.
I dissent and refer to my former dissent.
Here is a defendant who was ordered but failed to appear for sentence on March 10, 1969, after deliberately violating his probation. The law providing for a lesser sentence for the offense for which already he had been convicted by pleading guilty on October 28, 1968, was passed by the legislature on January 30, 1969, just 11 days prior to the date upon which he was to be sentenced. The law did not become effective until May 13, 1969, some two months later. Defendant conveniently left the State and disappeared until after May 13, 1969. He conveniently reappeared thereafter and presented himself for sentence on September 25, 1969, and was assessed the penalty extant at the time he committed the offense. He was hardly depediculated at the prison, when on October 16, 1969, he petitioned the court for release under statute. The trial court turned him down. Now we accommodate him.
Now, let's take the case of John Richard Mark Miller, of State v. Miller, 24 Utah 2d 1, 464 P.2d 844 (1970),--the case which I thought was and think should be controlling here. Mr. Miller, apparently a criminal with an honor unpossessed by Belt, showed up for sentence on an identical same charge, in compliance with the court's order,--and on time,--April 7, 1969, two months after the law was passed, but only one month before it became effective. He was sentenced on that date and can be made to serve up to 14 years in state prison under the statute that existed at the same time he and Belt committed the same crime, and in virtue of the decision here,--while Belt, by his own unlawful escape from the State and...
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...1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197 (1956); Belt v. Turner, 25 Utah 2d 230, 479 P.2d 791 (1971), aff'd on reh. 25 Utah 2d 380, 483 P.2d 425 (1971).18 M.C.L. Sec. 333.7401; M.S.A. Sec. 14.11(7401), as amended by 1987 P.A. 275, and M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403), as ......
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