Commonwealth ex rel. Saeger v. Dressell

• Decision Date: 14 July 1953
• Citation: 98 A.2d 430,174 Pa.Super. 39
• Parties: COMMONWEALTH ex rel. SAEGER v. DRESSELL.
• Court: Pennsylvania Superior Court

98 A.2d 430

174 Pa.Super. 39

COMMONWEALTH ex rel. SAEGER v. DRESSELL.

Superior Court of Pennsylvania.

July 14, 1953

Habeas corpus proceeding. The Court of Common Pleas for County of Lehigh at No. 101 April Term, 1953, denied the petition and relator appealed. The Superior Court, No. 115 October Term 1953, Gunther, J., held that where defendant pleaded nolo contendere to charge of operating motor vehicle while under influence of intoxicating liquor and on January 7, 1953 was sentenced to pay fine of $300 and costs of prosecution and to be placed in hospital until further order of court and further sentence was deferred meanwhile and subsequently on January 28th sentence of January 7th was revoked and in lieu thereof defendant was sentenced to pay fine of $300 costs of prosecution and to undergo imprisonment for period of 90 days the sentence of January 7th being fully executed the sentencing court retained no control over the defendant and the attempt to amend the sentence on January 28th was null and without effect.

Order reversed, petition granted.

Theodore R. Gardner, Allentown, for appellant.

M Jack Morgan, Dist. Atty., Allentown, for appellee.

Before RHODES, P. J., and HIRT, DITHRICH, ROSS, GUNTHER and WRIGHT JJ.

GUNTHER Judge.

Relator was charged with operating a motor vehicle while under the influence of intoxicating liquor. He entered a plea of nolo contendere, and on January 7, 1953, the Court of Quarter Sessions of Lehigh County pronounced sentence: ‘ Eo Die, the sentence of the Court is that you, John O. Saeger, pay a fine of $300.00, pay the costs of prosecution and be placed in the Institute of the Pennsylvania Hospital, at 111 North 49th Street, Philadelphia, Pennsylvania, under the care and treatment of Dr. Kenneth Appel and to remain there until the further order of this Court and further sentence is deferred meanwhile.’ Relator paid the fine and costs on that same day. On January 28, still within the January Sessions, relator was again brought before the court and this sentence was entered: ‘ Now, January 28, 1953, the sentence heretofore entered on January 7th, 1953, is revoked and, in lieu thereof, the sentence of the Court is that you, John O. Saeger, pay a fine of $300.00, pay the costs of prosecution and undergo imprisonment in the Lehigh County Prison for a period of ninety (90) days, * * *.’ Relator petitioned the Court of Common Pleas of Lehigh County for a writ of habeas corpus. After a hearing, the petition was denied and relator appealed.

Both the learned court below and the District Attorney of Lehigh County, representing appellee, concede that that portion of the court's sentence of January 7 by which further sentence was indefinitely postponed is void and of no effect. Commonwealth v. Peterson, 172 Pa.Super. 341, 94 A.2d 582, and cases cited therein.

‘ The power of the court to reconsider and alter its sentence, and even increase the punishment, during the term at which it was pronounced, if nothing has been done under it, is recognized generally in this country * * *. But where the sentence has been fully executed the power of the court to subject the defendant to additional punishment, whether by a new sentence or an amendment of the original, is gone.’ Com. v. Pennsylvania R. R., 41 Pa.Super. 29, 32, 33; Com. ex rel. Laughman v. Burke, 171 Pa.Super. 343, 348, 90 A.2d 622; Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872.

In its opinion of February 16, 1953, denying relator's petition the court below referred to Com. v. Penna. R. R., supra, but denied its application to the instant case: ‘ We are, however, still within the term at which Saeger was sentenced and we believe that (under the doctrine of Commonwealth v. Hottle, 139 Pa.Super. 128, 133, 11 A.2d 524, 526) the Court, while its attempt to defer sentence of imprisonment generally was void, still retained its right within the term to impose that part of the penalty, imprisonment, which had not already been imposed and executed.’ Defendant in the Hottle case, cited by the court below, received a sentence of fine...