Froembling v. Gladden
| Decision Date | 09 September 1966 |
| Citation | 417 P.2d 1020,244 Or. 314 |
| Parties | Harvey Richard FROEMBLING, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent. |
| Court | Oregon Supreme Court |
Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.
David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Cecil H. Quesseth, Asst. Atty. Gen., Salem.
Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
Petitioner seeks relief under the Post-Conviction Act. He appeals from a judgment in the form of an order allowing defendant's motion to quash the petition and dismissing petitioner's cause of action with prejudice.
The post-conviction proceeding in this case is the epilogue to State v. Froembling, 237 Or. 616, 391 P.2d 390 (1964), cert. den. 379 U.S. 937, 85 S.Ct. 339, 13 L.Ed.2d 347. In that case defendant, the petitioner in the present proceedings, appealed from a judgment correcting a previously imposed excessive sentence. He had been sentenced to life imprisonment and three terms of ten years, all sentences to run concurrently. The life sentence was erroneously imposed. After defendant had been imprisoned he was resentenced to serve 15 years, the sentence to run consecutively with the ten-year sentences. We held that no error was committed in imposing the consecutive sentence without credit for time previously served.
In the present proceeding petitioner contends that the trial court, in resentencing him to a 15-year consecutive sentence, increased the punishment previously imposed upon him and thereby violated his right not to be placed in double jeopardy and to due process and equal protection of the laws under the Oregon and United States Constitutions.
The contention is without merit. In State v. Froembling, supra, we held that when a sentence is erroneously imposed the trial court 'must exercise his discretion anew in arriving at what he considers an appropriate sentence' and that '(t)he test is whether the trial judge could have imposed the new sentence in the original proceeding.' 237 Or. at 619, 391 P.2d at 391. The subsequent proceeding under which defendant is resentenced should not be regarded as giving rise to a new jeopardy not previously existing--that jeopardy was present in the proceeding in which defendant was...
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State of Or. v. PARTAIN
...for errors other than an erroneous sentence, such as in [ State v. Froembling, 237 Or. 616, 391 P.2d 390 (1964) and Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966) ], and the defendant has again been convicted, no harsher sentence can be given than that initially imposed.” Id. Afte......
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State v. Turner
...State v. Froembling, 237 Or. 616, 391 P.2d 390, cert. den. 379 U.S. 937, 85 S.Ct. 339, 13 L.Ed.2d 347 (1964), and Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966), concern this general problem. In February, 1958, Froembling was sentenced to life and to three terms of ten years each.......
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State v. Key, C
...resulted in the ordering of a retrial for errors other than an erroneous sentence, such as in the Froembling cases (Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966); State v. Froembling, 237 Or. 616, 391 P.2d 390, cert. den. 379 U.S. 937, (85 S.Ct. 339, 13 L.Ed.2d 347) (1964)), and ......
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State v. Stockman, 18-108
...to State v. Froembling, 237 Or. 616, 391 P.2d 390, Cert. den. 379 U.S. 937, 85 S.Ct. 339, 13 L.Ed.2d 347 (1964), and Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966). In those cases the defendant was convicted of four offenses and sentenced to life imprisonment and three concurrent ......