Ex parte Wall, 387

• Decision Date: 14 May 1951
• Docket Number: No. 387,387
• Parties: Ex parte WALL. Motion
• Court: Michigan Supreme Court

Page 682

47 N.W.2d 682

330 Mich. 430

Ex parte WALL.

Motion No. 387.

Supreme Court of Michigan.

May 14, 1951.

Before the Entire Bench, except REID, C. J.

CARR, Justice.

The petitioner, Forest Wall, was tried before a jury in circuit court and convicted under an information alleging a violation of the State penal code, section 340. ¹ Under the statute such offense was punishable by imprisonment in the State Prison for not more than five years. Following the conviction petitioner was arraigned under a supplemental information charging that he had previously been convicted of three felonies. He was adjudged guilty thereunder and, on July 10, 1942, was sentenced to life imprisonment in the State Prison of Southern Michigan. The record before us indicates that he has been confined since that time.

In July, 1949, the trial judge, the situation having been called to his attention, entered an order setting aside the sentence imposed on petitioner, such action being based on the conclusion that the procedure taken under the supplemental information did not comply with the statutory requirements stated by this court in People v. Brown, 253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341. Thereafter a new supplemental information was filed, but was subsequently withdrawn. The prosecuting attorney then moved for imposition of sentence on the verdict of the jury. After argument by the prosecutor and by counsel representing petitioner the motion was granted, and on December 19, 1949, petitioner was sentenced to not less than 2 1/2 nor more than 5 years in ths State Prison of Southern Michigan. A commitment was issued accordingly.

The instant proceeding was instituted in this court for the purpose of testing the legality of the sentence under which petitioner is now confined. On the filing of the application for relief a writ of habeas corpus, directed to the warden of the prison, was issued, with ancillary writ of certiorari to the circuit court. Returns to the writs have been duly filed.

In presenting the motion for sentence on the verdict of the jury it was the position of the prosecuting attorney that the time served under the life sentence imposed in July, 1942, should not be considered for any purpose, that such sentence, having been set aside, was a mere nullity, and that the situation was precisely the same as it would have been if the proceeding under the supplemental information had not been taken. The prosecutor has not filed a brief in this court and the argument advanced before the circuit judge is not referred to in the People's brief submitted by the attorney general and the solicitor general of the State. The acceptance of such theory would suggest inquiry as to whether jurisdiction to impose the sentence now in question was lost because of the delay of approximately 7 1/2 years following the conviction. However, the determination of such question on this record is not required. With reference to it we merely call attention to the opinion of the court in People v. Cordell, 309 Mich. 585, 16 N.W.2d 78, and to prior decisions therein cited and discussed.

The statements of the trial judge at the time the sentence in question was imposed indicate that he relied on In re Doelle, 323 Mich. 241, 35 N.W.2d 251, and In re DeMeerleer, 323 Mich. 287, 35 N.W.2d 255. In the Doelle case the petitioner was tried and convicted under an information charging, in separate counts, breaking and entering in the nighttime with intent to commit larceny and larceny in a store. The jury returned a verdict of guilty as charged, and sentence of not less than 7 1/2 nor more than 15 years was imposed for the offense of breaking and entering in the nighttime, without reference to the other count. Subsequently the sentence was set aside, a new trial was granted, and Doelle was permitted to plead guilty to the offense of larceny from a store. The plea was accepted and sentence was imposed. Thereafter he challenged the validity of the sentence on the ground that he had served under the prior sentence longer than the maximum term (4 years) prescribed for the lesser offense. It will be noted that the sentence which Doelle sought to avoid was imposed following a conviction after the original sentence had been vacated. In determining the matter adversely to the petitioner's claim this court called attention in its opinion to the fact that the matter of the punishment to be imposed following conviction of a crime is governed by applicable statutes. In this connection People v. Harwood, 286 Mich. 96, 281 N.W. 551, was cited, and it was said: 'The length of imprisonment for a specific felony is a matter for legislative determination and is not subject to judicial supervision unless the sentence imposed violates the provisions of the statutes.' [23 Mich. 241, 35 N.W.2d 253.] In the DeMeerleer case the situation was similar, and the holding in the Doelle...