In re Application of Peterson

• Decision Date: 25 February 1911
• Citation: 113 P. 729,19 Idaho 433
• Parties: In the Matter of the Application of CHRIS PETERSON for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

113 P. 729

19 Idaho 433

In the Matter of the Application of CHRIS PETERSON for a Writ of Habeas Corpus

Supreme Court of Idaho

February 25, 1911

HABEAS CORPUS - JUDGMENT - FORM OF - LOSING JURISDICTION - SENTENCE-SUSPENDING INDEFINITELY.

(Syllabus by the court.)

1. Where on a plea of guilty the defendant is sentenced to imprisonment for a term of six months and a fine of $300 and costs of suit, and it is provided in the judgment that in case said fine and costs are not paid, defendant be imprisoned in the county jail until said fine and costs are paid, at the rate of one day's imprisonment for each two dollars of the fine and costs, not exceeding 172 days in all and it is further ordered that upon payment of said fine and costs the judgment for six months' imprisonment be suspended until further order of the court or the judge thereof, and the defendant pays said fine and costs and is released without bail, the court has no authority to have the defendant rearrested and imprisoned to serve out said term of imprisonment.

2. The final sentence and judgment against the defendant cannot be made a mere matter of discretion with the judge or court to depend upon the subsequent conduct of the convicted person. Such sentence is wholly unauthorized by law, and a defendant imprisoned thereunder will be discharged on habeas corpus.

Original application for writ of habeas corpus. Writ granted and defendant discharged.

Petition granted and the prisoner discharged.

Herman H. Taylor, for Petitioner.

"The rendering of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the public prosecutor nor to depend upon the subsequent conduct of the convicted person." ( People ex rel. Boenert v. Barrett, 202 Ill. 287, 95 Am. St. 230, 67 N.E. 23, 63 L. R. A. 82; Weaver v People, 33 Mich. 296; In re Strickler, 51 Kan. 700, 33 P. 620.)

The vacation and resentence after part of a valid sentence, partly or wholly executed, is void. (25 Am. & Eng. Ency. of Law, 315, and cases cited; State v. Addy, 43 N.J.L. 113, 39 Am. Rep. 547; State v. Crook, 115 N.C. 760, 20 S.E. 513, 29 L. R. A. 261; Ex parte Lange, 18 Wall. (U. S.) 163, 21 L.Ed. 872; State v. Warren, 92 N.C. 825; State v. Gray, 37 N.J.L. 368.)

Under a like statute, the courts of California and other states have held that where imprisonment is inflicted under a section identical with 7994, Rev. Codes, and a fine imposed in addition thereto, the court cannot enforce payment of the fine by imprisonment for its nonpayment in addition to the imprisonment originally pronounced. (In re Rosenheim, 83 Cal. 388, 23 P. 372; People v. Hamberg, 84 Cal. 468, 24 P. 299; In re Wadleigh, 82 Cal. 518, 23 P. 190; Lowrey v. Hogue, 85 Cal. 600, 24 P. 995; People v. Brown, 113 Cal. 35, 45 P. 181; Roberts v. Howells, 22 Utah 389, 62 P. 892.)

The judgment is a unit, and if one portion of it is without the jurisdiction of the court, the judgment is void. (Ex parte Kelly, 65 Cal. 154, 3 P. 673; Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197.)

The judgment for a fine of $ 300 and the costs, with a provision for imprisonment if they are not paid, was the real judgment of the court, and the portions of it providing for six months' imprisonment, in view of the order suspending it, may be considered the void portion, or at least that it was not to be inflicted. This construction would not make necessary the finding that any portion of the sentence was void, but that the real sentence was a fine of $ 300 and costs, to be either paid or served at the rate of one day for each two dollars. (People v. Blackburn, 6 Utah 347, 23 P. 759.)

D. C. McDougall, Attorney General, and O. M. Van Duyn, Assistant, for the State, file no brief.

SULLIVAN, J. Ailshie, Presiding J., and Budge, District Judge, concur.

OPINION

SULLIVAN, J.

This is an application for a writ of habeas corpus to obtain the release of Chris Peterson from the custody of the sheriff of Bonner county. The cause of the imprisonment is as follows:

On the 9th of December, 1910, in the district court of Bonner county, the defendant plead guilty to the charge of selling intoxicating liquors in violation of what is commonly known as the local option law (Sess. Laws, 1909, p. 9). The defendant appeared for sentence and the following sentence and judgment was entered in the minutes of the court on December 10, 1910:

"At this day, the state was represented by Mr. Peter Johnson, prosecuting attorney, and John A. Steinlein, the defendant, was represented by his counsel, Mr. E. W. Wheelan, the said defendant through his said counsel having heretofore entered a plea of guilty in said action, and the court having fixed this date as the time to pronounce judgment, and the court being fully advised rendered its judgment as follows:

"It is the judgment of the law and the sentence of the court that you, the said Chris Peterson, be imprisoned in the county jail situated at Sandpoint, Bonner county, state of Idaho, and be therein confined for a period of six months, and that the date of your confinement will commence when you reach the jail, and that you pay a fine in the sum of $ 300 and the costs taxed at $ 44.30, and that in case said fine and costs are not paid you be imprisoned in the county jail of said county until said fine and costs are paid at the rate of one day imprisonment for each $ 2 of said fine and costs, not exceeding 172 days in all for such nonpayment of fine and costs. It is further ordered that upon payment of said fine and costs, the foregoing judgment of six months' imprisonment be suspended until the further order of this court, or the judge thereof."

On the 9th day of December, 1910, the defendant also entered a plea of guilty to another charge of the same kind and a judgment was entered against him sentencing him to imprisonment for six months in the county jail and a fine of $ 200 and costs of suit, which fine and costs amounted to $ 219.80, and the defendant was sentenced to imprisonment in the county jail at the rate of one day for each two dollars of said fine and costs, amounting to 109 days. It was also provided by said judgment that upon payment of said fine and costs the sentence of imprisonment should be suspended until the further order of the court or judge. The defendant thereupon paid the fine and costs in both cases and was released from custody without bail, and was permitted to go at liberty without any requirement to further appear under said judgments or either of them, except that the sentence of six months' imprisonment was suspended until the further order of the court or judge. Thereafter, without any notice to the defendant or his attorney and without any modification of said judgment, the clerk of said court delivered to the sheriff of said county a commitment in said first action, which is in words and figures as follows:

"At this day the defendant appeared in open court with his counsel, E. W. Wheelan, Esquire, the state being represented by Peter Johnson, prosecuting attorney, and John A Steinlein, Esquire.

"Thereupon the defendant was informed by the court that an information had been filed against him charging him with selling intoxicating liquor contrary to law, namely, whisky and of his plea of guilty as charged; and was then asked by the court if he had any...