Dawson v. Sisk

• Decision Date: 16 June 1942
• Docket Number: 45867.
• Citation: 4 N.W.2d 272,231 Iowa 1291
• Parties: DAWSON v. SISK, Judge of Municipal Court.
• Court: Iowa Supreme Court

4 N.W.2d 272

231 Iowa 1291

DAWSON v. SISK, Judge of Municipal Court.

No. 45867.

Supreme Court of Iowa

June 16, 1942

Clay H. Jensen and John D. Beardsley, both of Sioux City, for petitioner.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and M E. Rawlings, Co. Atty., of Sioux City, for respondent.

MILLER Justice.

On September 21, 1938, petitioner Dawson was indicted by the grand jury of Woodbury County for maintaining a liquor nuisance. The indictment was thereafter transferred to the municipal court of Sioux City for trial. On December 29, 1938, Dawson appeared before Hon. Bernard A. Brown, a judge of said municipal court, entered a plea of guilty and the following judgment was entered by Judge Brown, to wit: "And now to-wit: this 29th day of December, 1938, defendant appears by attorney, Robert Munger; State appears by Asst. County Attorney John Mulhall. Defendant pleads guilty. On recommendation of county attorney, the Court orders and decrees that defendant be fined $300.00 and costs and in default of said fine, defendant to be confined in county jail for a period of 90 days. On payment of $100.00 and costs, not later than December 31st, 1938, balance of sentence suspended during good behavior or until further order of Court. Bernard A. Brown, Judge."

The minimum sum of $100 above specified and costs amounting to $7.70 were paid, and on April 14, 1939, Dawson's bond was released, his sureties were exonerated, and a transcript of the proceedings was certified to the district court of Woodbury County. On October 23, 1941, without notice to anyone, the respondent Sisk, a judge of said municipal court, entered the following order: "And now, towit this 23rd day of October, 1941, it is hereby ordered by the Court that the suspended portion of the sentence heretofore entered against defendant herein be and the same is hereby reinstated and a mittimus ordered issued for the enforcement of same." On the same day Judge Sisk issued a mittimus to the sheriff of Woodbury County commanding him to take Dawson into custody.

On November 4, 1941, a petition for writ of certiorari was filed with this court, asserting that the order entered by Judge Sisk on October 23, 1941, and the mittimus issued by him pursuant thereto were illegal, in excess of his authority, and without any force and effect in law. A writ was issued and served, in response to which a return was made disclosing the facts herein set forth.

Section 3800 of the Code 1939 provides as follows: "The trial court before which a person has been convicted of any crime except treason, murder, rape, robbery, arson, second or subsequent violation of any provision of title VI, or of the laws amendatory thereof, may, by record entry, suspend the sentence and parole said person during good behavior: 1. If said person has not previously been convicted of a felony. 2. If said person is shown to be free from venereal disease. 3. If said person, if an adult and able to labor, has obtained apparently permanent employment for a reasonable time."

Section 3801 of the Code 1939 provides as follows: "When a parole is granted under section 3800, the court shall order said person committed to the custody, care, and supervision: 1. Of any suitable resident of this state; or 2. Of the board of parole."

The parties agree that the foregoing provisions of the statute were not followed. The question is the effect to be given to such failure.

In the case of State v. Voss, 80 Iowa 467, 45 N.W. 898, 8 L.R.A. 767, defendants were found guilty of contempt of injunctions against saloon nuisances and were sentenced to pay fines or be imprisoned in default of such payment, but the judgments contained the following condition: "The execution of this judgment is to be suspended during the pleasure of the court; but whenever the court, or one of the judges thereof, so directs, execution and warrant of commitment are to issue." The validity of such condition was challenged in certiorari and this court held that that part of the judgment which suspended execution was without authority of law and null and void.

In the case of Miller v. Evans, 115 Iowa 101, 102, 103, 88 N.W. 198, 199, 56 L.R.A. 101, 91 Am.St.Rep. 143, we state: "The right to suspend sentence after being pronounced is denied the courts of this state. State v. Voss, 80 Iowa 467, 45 N.W. 898, 8 L.R.A. 767. And this seems now to be the prevailing rule. Neal v. State, 104 Ga. 509, 30 S.E. 858, 42 L.R.A. 190, 69 Am.St.Rep. 175; In re Webb, 89 Wis. 354, 62 N.W. 177, 27 L.R.A. 356, 46 Am.St.Rep. 846; State v. Murphy, 23 Nev. 390, 48 P. 628; In re Markuson, 5 N.D. 180, 64 N.W. 939. Contra: Weber v. State, 58 Ohio St. 616, 51 N.E. 116, 41 L.R.A. 472; Fults v. State, 2 Sneed, [Tenn.], 232; State v. Crook, 115 N.C. [ [[760], 763, 20 S.E. [ 513], 514, 29 L.R.A. 260. See, also, People v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386, 23 L.R.A. 856."

In the case of State ex rel. Preston v. Hamilton, Judge, 206 Iowa 414, 220 N.W. 313, one Wilson pled guilty to the charge of illegal possession of intoxicating liquor and was fined $300. The judgment contained the additional provision: "The foregoing judgment is suspended during good behavior on condition that defendant pay the costs of this suit." The validity of such provision was challenged on certiorari. This court pointed out that Section 16 of Article 4, Constitution of Iowa, confers the power to grant reprieves, commutations and pardons, after conviction, upon the governor. Pursuant thereto, we state: "No one but the Governor, under our system of government, has the power, right, or authority to thus remit, reprieve, commute, or pardon. State v. Voss, 80 Iowa 467 (45 N.W. 898, 8 L.R.A. 767); Miller v. Evans, 115 Iowa 101 (88 N.W. 198, 56 L.R.A. 101, 91 Am.St.Rep. 143). See, also, McKay v. Woodruff, 77 Iowa 413, (42 N.W. 428); Gunn v. Mahaska County, 155 Iowa 527, 136 N.W. 929; State [ex rel. Hammond] v. Hume, 193 Iowa 1395, 188 N.W. 796; Hall v. Wheeler, 196 Iowa 100, 194 N.W. 268; Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A.1917E, 1178, [Ann.Cas.1917B, 355]."

After quoting at length from State v. Voss, supra, and Miller v. Evans, supra, we state: "There was, in the case at bar, a final judgment of conviction, even though the suspension provision was added thereto. State v. Olson, 200 Iowa 660, 204 N.W. 278. Consequently, the trial court's action directly violated the constitutional provisions and usurped the prerogatives of the executive department of our government. Therefore, jurisdiction in the respondents was lacking, and hence the attempted 'suspension' must be and is a nullity. If it were otherwise, every conviction for a criminal offense could be rendered nugatory by judicial action, and resultantly the statutes against crime would become ineffective. Said obligation upon the tribunal 'to try' the derelict is no more sacred than the duty to impose 'sentence' upon conviction, and when once entered, such judgment cannot be set aside, except by the Governor."

The provisions of Sections 3800 and 3801 of the Code 1927, which are identical with the sections in the Code 1939, above quoted, are set forth and we state: "Manifestly that was not the course pursued by the respondents here. Without deciding that the 'parole' statutes apply to the offense of which Wilson was convicted, we merely hold that the court below did not follow the method therein prescribed to avoid the immediate execution of the judgment."

By reason of the foregoing, it readily appears that the portion of the judgment which undertook to suspend the balance of the fine was without authority, illegal and void. The question then arises: What authority did the court have in reference to the enforcement of that portion of the judgment that was valid? Also, how much of the judgment was enforceable? Had the sentence been suspended in compliance with Sections 3800 and 3801 of the Code, supra, the court would have had authority, under Section 3805 of the Code 1939, to revoke such suspension for cause without notice and to commit the defendant in obedience to the judgment. Pagano v. Bechly, 211 Iowa 1294, 232 N.W. 798; Bennett v. Bradley, 216 Iowa 1267, 249 N.W. 651; State v. Bufford, Iowa, 2 N.W.2d 634. Under the record herein, however, both sides agree that Sections 3800 and 3801 were not complied with and that the attempted suspension of the sentence was void. The power of the court, in such a situation, presents a different question and one which apparently has not been expressly determined by this court. The decisions from courts of other jurisdictions are not in harmony. It therefore becomes our duty to decide which line of authority is more persuasive, and select the same as the law of this state.

In Morgan v. Adams, 8 Cir., 226 F. 719, 720, 721, Judge Sanborn, speaking for the court, states:

"When a court, upon conviction of an accused person, sentences him to fine and imprisonment, and in the entry of the judgment, or thereafter, causes the entry of an unauthorized order suspending the sentence, or a part thereof, during the good behavior of the accused, or during any other indefinite time is the sentence void, so that after the expiration of the term the court is without jurisdiction to issue a mittimus or other process to enforce it? The court below answered this question in the affirmative, and its decision is sustained by the opinions in United States v. Wilson, C.C., 46 F. 748; Ex parte Clendenning, 22 Okl. 108, 97 P. 650, 653, 19 L.R.A.,N.S., 1041, 132 Am.St.Rep. 628; Ex parte Peterson, 19 Idaho 433, 113 P. 729, 730, 33 L.R.A., N.S., 1067, and In re Strickler, 51 Kan. 700, 702, 33 P. 620. The following authorities tend to sustain a negative answer to the same...