Ex parte Lombardi, 28586.

• Decision Date: 19 March 1942
• Docket Number: 28586.
• Citation: 13 Wn.2d 1,123 P.2d 764
• Parties: Ex parte LOMBARDI.
• Court: Washington Supreme Court

123 P.2d 764

13 Wn.2d 1

Ex parte LOMBARDI.

No. 28586.

Supreme Court of Washington

March 19, 1942

Department 2.

In the matter of the application of James Lombardi for a writ of habeas corpus, claiming that he was confined in the state penitentiary without a warrant of law.

Writ granted and petitioner ordered discharged from custody.

MILLARD J., dissenting.

Gordon S. Lower, of Spokane, and James Lombardi (per se), of Walla Walla, for petitioner.

Smith Troy, Atty. Gen., and Shirley R. Marsh and Hugh A. Dressel Asst. Attys. Gen., for the State.

BEALS Justice.

James Lombardi has filed in this court his petition for a writ of habeas corpus, claiming that he is at present confined in the state penitentiary at Walla Walla without warrant of law.

It appears that the petitioner was, during the spring of 1924 by information filed with the superior court for Spokane county, charged with the crime of grand larceny. To the information, Lombardi entered a plea of not guilty. June 8, 1924, upon his trial, the jury returned a verdict of guilty as charged. Thereafter, for the crime of which he had been convicted, Lombardi was sentenced to confinement in the state penitentiary for a period of not less than ten years nor more than fifteen years. June 14, 1924, the formal judgment of guilty and the sentence imposed were reduced to writing and signed by the judge of the superior court Before whom petitioner had been tried. The usual commitment was regularly issued on the date of the signing of the judgment and sentence.

June 14, 1924, the same day that judgment and sentence was signed, an information was filed Before the superior court for Spokane county, alleging that Lombardi had been thrice convicted of felonies Before his conviction of the crime of grand larceny above referred to, the information also alleging the conviction of the crime of grand larceny, June 8, 1924, as above set forth. To this information Lombardi entered a plea of not guilty. The jury found Lombardi guilty as charged, sentence was pronounced, and October 14, 1924, formal written judgment and sentence was entered, directing that Lombardi be confined in the state penitentiary for the period of his natural life. The commitment was regularly entered upon this judgment, and Lombardi was conveyed to the penitentiary, where he has ever since been confined.

It appears, then, that the judgment and sentence entered pursuant to the verdict of guilty of the crime of grand larceny was signed June 14th, and that the information charging Lombardi with being an habitual criminal was filed on the same day. Until the filing of the latter information, the record in the grand larceny case was perfectly clear, and no reason appeared in the record why petitioner should not be sentenced pursuant to the verdict of conviction.

In the case of State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 P. 721, 722, reaffirmed upon rehearing, 140 Wash. 385, 249 P. 784, 250 P. 469, this court said:

'We think it quite plain under our previous decisions and the statute here involved (section 2286, Rem.Comp.Stats.) that to justify a determination that one is an habitual criminal there must not only be a certain number of prior convictions as specified in the statute, but there must be one conviction immediately prior thereto, and upon which the defendant has not been sentenced. * * * The purpose of the filing of an habitual criminal information is to place the court in a position when it gets ready to pronounce sentence to determine the previous record of the defendant, and, based upon the immediately preceding conviction and prior convictions, to impose the mandatory sentence required by the statute.

'It will be observed from the facts detailed that after motions in arrest of judgment and for a new trial had been denied, and Before defendant was sentenced upon the burglary charge, an information was filed charging him with being an habitual criminal. We think that while this charge was pending Before the court it was without power to sentence defendant upon the burglary charge until the issue of prior conviction was determined. It could not know what sentence was mandatory under the statute until the charge of being an habitual criminal had been tried out. The sentence of the court, therefore, we think, was a nullity.'

In the case of State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44, we approved the rule laid down in the Edelstein case, further illustrating the matter of the procedure to be followed in determining the status of one convicted of crime as an habitual criminal.

The two cases above referred to were cited with approval in the case of State v. Plautz, 185 Wash. 578, 55 P.2d 1057.

This court has held that one charged with being an habitual criminal is not charged with a substantive crime, but merely with a status, which, if the charge is substantiated, calls for increased punishment for the latest crime of which the accused has been convicted, the habitual criminal charge being related to the conviction of a substantive crime only to the extent that the...