Johnson v. Sacks

• Citation: 20 O.O.2d 76,173 Ohio St. 452,184 N.E.2d 96
• Decision Date: 27 June 1962
• Docket Number: No. 37088,37088
• Parties: , 20 O.O.2d 76 JOHNSON v. SACKS, Warden.
• Court: United States State Supreme Court of Ohio

Page 452

173 Ohio St. 452

184 N.E.2d 96, 20 O.O.2d 76

JOHNSON v. SACKS, Warden.

No. 37088.

Supreme Court of Ohio.

June 27, 1962.

James W. Johnson, in pro. per.

Mark McElroy, Atty. Gen., and John J. Connors, Jr., Columbus, for respondent.

PER CURIAM.

Petitioner's primary contention is that the trial court erred when it sentenced him to the Ohio State Reformatory instead of the Ohio Penitentiary. He bases his contention on the wording of Section 12441, General Code, which, prior to October 1, 1953, provided for imprisonment in the penitentiary for the offense defined in such section. Although Section 2907.14, Revised Code, under which petitioner was convicted, did not specify the place of imprisonment, we will treat such section under the rules for interpreting the Revised Code as though such word were contained therein. Section 1.24, Revised Code.

It should be noted at the outset that irregularities in a sentence are not subject to review in a habeas corpus proceeding. Birns v. Sweeney, Sheriff, 154 Ohio St., 137, 93 N.E.2d 562; Ex Parte Van Hagan, 25 Ohio St. 426.

However, petitioner contends the trial court lost its jurisdiction when it imposed an erroneous sentence. In this he is in error. The imposition of an erroneous sentence does not deprive the trial court of jurisdiction. Kiser v. Mayo, 138 Fla. 775, 190 So. 246; Jordan v. Swope, Supt., 36 N.M. 84, 8 P.2d 788.

The error we have in the present instance does not affect the validity of the judgment of conviction but merely the place of sentence thereunder.

The General Assembly, anticipating that such error might occur in sentencing, enacted Section 2965.32, Revised Code, which reads as follows:

'If a prisoner is sentenced to the penitentiary or the reformatory who is not legally eligible for admission thereto, the warden or superintendent of said institution shall receive said prisoners [sic] and shall forthwith recommend to the department of mental hygiene and correction, the transfer of said prisoner to the proper institution. Prisoners so transferred are entitled to the same legal rights and privileges as to the term of sentence, diminution of sentence, and parole, as if originally sentenced and committed to the institution to which they have been transferred.'

Pursuant to such section, the superintendent, as soon as he discovered petitioner's ineligibility for incarceration in the reformatory, notified the proper authorities and in less than three months petitioner was transferred to the Ohio Penitentiary.

The petitioner urges further that his indictment was invalid. He bases this contention on the fact that his indictment failed to contain the emphasized part of Section 2907.14, Revised Code, which reads and is emphasized as follows:

'No person shall, by day or night, maliciously enter a bank or other financial institution which receives upon deposit or otherwise for safekeeping the moneys or public funds of individuals or...