Dembowski v. State, No. 0--871
| Docket Nº | No. 0--871 |
| Citation | 251 Ind. 250, 240 N.E.2d 815 |
| Case Date | October 16, 1968 |
| Court | Supreme Court of Indiana |
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v.
STATE of Indiana, Respondent.
Page 816
Stanley Dembowski, pro se.
LEWIS, Chief Justice.
Petitioner has filed with this Court, pursuant to Supreme Court Rule 2--22 (1967), a petition for rehearing [251 Ind. 251] on an unpublished per curiam opinion rendered by this Court under date of September 22, 1967, and said petition for rehearing is hereby granted.
Petitioner claims that his ten (10) to twenty-five (25) year indeterminate sentence for the crime of Robbery is in violation of the Eighth Amendment of the United States Constitution, and Article I, Section Sixteen (16) of the Indiana Constitution. Petitioner's challenge on the basis of these constitutional provisions is one of first impression for this Court, and in resolving this case we have interpreted the statutory provision in question with a strong presumption of constitutionality. Upon a careful examination of the applicable law in this area, however, we make a favorable finding on petitioner's claim.
The Eighth Amendment of the United States Constitution provides:
'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' (emphasis added)
Article I, Section 16, of the Indiana Constitution requires that:
'Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.' (emphasis added)
Petitioner was convicted of Robbery pursuant to Burns' Indiana Statutes, Anno., (1956 Repl.), § 10--4101, which states:
'Whoever takes from the person of another any article of value by violence or putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years. * * *'
Burns' Indiana Statutes, Anno., (1965 Supp.), § 10--4709, provides:
[251 Ind. 252] 'Any person who being over sixteen (16) years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, or while any other person present and aiding or assisting in committing or attempting to commit either of said crimes is armed with any of said weapons, shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten (10) years nor more than twenty (20) years, to be fixed by the court: * * *'
It should be noted that the punishment established for the commission of Armed Robbery is a ten (10) to twenty (20) year determinate sentence, and the punishment set by the legislature for the commission of Robbery is a ten (10) to twenty-five (25) years indeterminate sentence. Robbery then, at the very least, carries a sentence which is, on the face of the statutes,
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five (5) years greater than the maximum sentence permitted for the commission of Armed Robbery.From a literal reading of the provisions of Burns' § 10--4709 (supra), the offense of Robbery while Armed would appear to be a distinct offense, with Robbery a separate and not included offense. This Court, however, has consistently ruled that Robbery is a lesser included offense of Armed Robbery, and that it is error for a defendant to be convicted of both offenses stemming from the same acts. Carter v. State (1951), 229 Ind. 205, 96 N.E.2d 273; Kokenes v. State (1938), 213 Ind. 476, 13 N.E.2d 524; Polson v. State (1893), 137 Ind. 519, 35 N.E. 907; Taylor v. State (1968), Ind., 236 N.E.2d 825.
The question petitioner raises for our determination, then, is whether the legislature has abused its Constitutional power to define criminal offenses and set penalties thereof, by providing a greater maximum punishment for a lesser included offense. We conclude that in so doing it has.
[251 Ind. 253] This Court has several times in recent years (see Taylor v. State, supra) considered the constitutionality of the variance in...
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Lynch, In re, Cr. 16232
...lewd and lascivious acts upon a child would be so excessive as to constitute cruel and unusual punishment. In Dembowski v. State (1968) 251 Ind. 250, 240 N.E.2d 815, a 25-year maximum indeterminate sentence for robbery was ruled unconstitutionally disproportionate to a lesser punishment for......
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Ralph v. Warden, Maryland Penitentiary, 13757.
...examples of sentences set aside as disproportionate are United States v. McKinney, 427 F.2d 449, 455 (6th Cir. 1970); Dembowski v. State, 240 N.E.2d 815 (Ind.1968); Cannon v. Gladden, 203 Or. 629, 281 P.2d 233 (1955); State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273 (1948); and Calhoun v. St......
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Cobb v. State, 778S142
...See Brown v. State, (1973) 261 Ind. 169, 301 N.E.2d 189; Emery v. State, (1973) 261 Ind. 211, 301 N.E.2d 369; Dembowski v. State, (1968) 251 Ind. 250, 240 N.E.2d 815. The penalty in this case does not exceed constitutional boundaries, and the court did not act improperly in choosing the sen......
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State v. Cooper, 15574
...also are supported by Troyer v. State, Alaska, 614 P.2d 313 (1980); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815 (1968); Workman v. Commonwealth, Ky., 429 S.W.2d 374, 33 A.L.R.3d 326 (1968); People v. Lorentzen, 387 Mich. 167, 194 Page 8......
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Lynch, In re, Cr. 16232
...lewd and lascivious acts upon a child would be so excessive as to constitute cruel and unusual punishment. In Dembowski v. State (1968) 251 Ind. 250, 240 N.E.2d 815, a 25-year maximum indeterminate sentence for robbery was ruled unconstitutionally disproportionate to a lesser punishment for......
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State v. Cooper, No. 15574
...also are supported by Troyer v. State, Alaska, 614 P.2d 313 (1980); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815 (1968); Workman v. Commonwealth, Ky., 429 S.W.2d 374, 33 A.L.R.3d 326 (1968); People v. Lorentzen, 387 Mich. 167, 194 Page 8......
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Cobb v. State, No. 778S142
...See Brown v. State, (1973) 261 Ind. 169, 301 N.E.2d 189; Emery v. State, (1973) 261 Ind. 211, 301 N.E.2d 369; Dembowski v. State, (1968) 251 Ind. 250, 240 N.E.2d 815. The penalty in this case does not exceed constitutional boundaries, and the court did not act improperly in choosing the sen......
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Adams v. State, No. 369S41
...States Constitution. (The Eighth Amendment is now applicable to the states, through the Fourteenth Amendment. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815; Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.) Those constitutional provisions are as 'Excessiv......