Kittelson v. Havener

• Decision Date: 11 February 1976
• Docket Number: Cr. N
• Citation: 239 N.W.2d 803
• Parties: Ernest KITTELSON, Petitioner, v. Joseph H. HAVENER, Warden of the State Penitentiary, and Edward J. Klecker, Director of Institutions, Respondents. o. 549.
• Court: North Dakota Supreme Court

Page 803

239 N.W.2d 803

Ernest KITTELSON, Petitioner, v. Joseph H. HAVENER, Warden of the State Penitentiary, and Edward J. Klecker, Director of Institutions, Respondents.

Cr. No. 549.

Supreme Court of North Dakota.

Feb. 11, 1976.

Syllabus by the Court

1. The appropriate procedure to obtain review of conviction other than by appeal is by motion under the Uniform Post-Conviction Procedure Act, Chapter 29--32, NDCC, which was intended to replace habeas corpus statutes so far as persons arrested for, or convicted of, violation of criminal law are concerned.

2. The language of § 12.1--01--01(2), NDCC, constitutes a saving clause and in effect provides that the penalties under the prior criminal statute, repealed or amended by Title 12.1, remain in full force as to crimes committed prior to the repeal of that statute.

3. The term 'prosecution' as used in § 12.1--01--01, NDCC, refers to the entire proceeding, including the sentencing.

4. The intent of the Legislature is enacting subsection (3) to § 12.1--01--01, NDCC, was to establish that violations committed prior to the effective date of Title 12.1 would be tried under the law in effect at the time and that such law would not be considered repealed until the legal process against the defendant had been completed.

Benjamin C. Pulkrabek, Public Defender, Bismarck, for petitioner.

Donald R. Holloway, Special Asst. Atty. Gen., Bismarck, Richard L. Schnell, Morton County State's Atty., Mandan, John E. Adams, Asst. Atty. Gen., Bismarck (appearance by Marvin M. Hager, Asst. State's Atty.), for respondents.

SAND, Judge.

Kittelson, the petitioner, through his attorney, invoking the original jurisdiction of this Court in a habeas corpus proceeding, seeks to be discharged from confinement.

Kittelson claims he was illegally sentenced to the State Penitentiary because § 12--38--04, NDCC, under and pursuant to which he was charged on May 12, 1975, and sentenced on November 5, 1975, had been effectively repealed without an express savings clause as to the incarceration penalty by the enactment of Title 12.1, chapter 116 of the 1973 Session Laws, which became effective July 1, 1975.

Kittelson, on May 3, 1975, and again on May 4, 1975, drew checks on First Northwestern Bank in Mandan in the amount of $20.00 each, payable to Lewis and Clark Hotel, for which he received $20.00 from the Lewis and Clark Hotel in each instance. At the time, he had no money in the bank. The State's Attorney, on May 12, 1975, issued a complaint charging petitioner with two counts of obtaining property by false pretenses in violation of § 12--38--04, NDCC. On October 31, 1975, Kittelson appeared before the district judge and plead guilty to the charges, and on November 5, 1975, he was sentenced to a year in the State Penitentiary, where he is presently incarcerated. On December 12, 1975, he unsuccessfully sought release through a writ of habeas corpus proceedings before Judge Benny Graff.

This Court in McGuire v. Warden of State Farm, 229 N.W.2d 211 (N.D.1975), said that the Uniform Post-Conviction Procedure Act, chapter 29--32, NDCC, was intended to replace habeas corpus statutes so far as persons arrested for, or convicted of, violation of criminal law are concerned. We concluded that 'because of the provisions of the Uniform Post-Conviction Procedure Act and in the interest of orderly management of the case flow of the courts, petitions for relief in the nature of habeas corpus should normally be directed to the court in the district of conviction, under the Uniform Post-Conviction Procedure Act.' But we also concluded that because the parties briefed and argued the case on its merits and because the matters raised were of substantial importance which had not been settled, we decided to resolve the substantive questions presented.

This Court, in Charles Edward Smith v. State of North Dakota, 236 N.W.2d 632 (N.D.1975), reaffirmed the McGuire decision by saying that the appropriate procedure to obtain review of conviction other than by appeal is under the Uniform Post-Conviction Procedure Act, chapter 29--32, NDCC, and not by habeas corpus. We affirm and adhere to those decisions, but because of the unique question raised which needs to be resolved by this Court, either at this proceeding or at a subsequent proceeding, we deem it advisable to resolve it now.

The petitioner contends that pursuant to the specific provisions of § 1--02--17, NDCC, he is entitled to be released and discharged from any further confinement. This section provides as follows:

'The repeal of any statute by the legislative assembly, or by the people through an initiated law, shall not have the effect of releasing or extinguishing any penalty, fine, liability, or forfeiture incurred under such statute, But as to cases tried before, or subsequent to, the repeal of such statute, it shall have the effect of extinguishing any jail or prison sentence that may be, or that has been, imposed by reason of said law, Unless the repealing act shall provide expressly that the penalties of imprisonment shall remain in force as to crimes committed in violation of such law prior to its repeal. In other respects, such act shall remain in force only for the purpose of the enforcement of such fine, penalty, or forfeiture.' (Underscoring ours.)

Section 1--02--17, NDCC, is a statutory provision, and even though it is couched in strong and emphatic language, it cannot be transmuted into a constitutional provision so as to impose specific conditions or limitations upon the State Legislature on matters pertaining to legislative powers and methods of procedure. Consequently, such statutory provision is subject to amendment, modification, revision, alteration, or repeal by the ordinary legislative process, including enactment of other Acts on the same subject.

This Court had under consideration provisions of the above mentioned section in Ex parte Chambers, 69 N.D. 309, 285 N.W. 862 (1939), and held that the provisions which attempted to extinguish the incarceration sentences of persons convicted and sentenced prior to the effective date of the Act was in conflict with § 76 of the North Dakota Constitution and to that extent was invalid. However, in this instance we are not involved with a sentence imposed prior to the effective date of the Act.

On careful examination, it becomes quite apparent that § 1--02--17, NDCC, addresses itself to situations where there is an outright repeal without a replacement. We express serious reservations whether or not the provisions of this section apply to instances where a statute was repealed and replaced by another Act even though the substituted Act differed somewhat from the repealed statute.

The petitioner argues strenuously that, pursuant to the provisions of § 1--02--17, NDCC, the repeal of § 12--38--04, without a specific saving clause as to the penalty thereunder, any jail or prison penalties provided for under said section became extinguished on July 1, 1975, the effective date of Title 12.1, chapter 116 of the 1973 Session Laws.

Let us now examine some of the pertinent provisions of Title 12.1, chapter 116, 1973 Session Laws.

Section 42 of chapter 116, 1973 Session Laws, provides that the Act shall become effective on July 1, 1975. Section 41 of the same chapter contains the repeal provision. Section 1, by which § 12.1--01--01 was created, provides as follows:

'1. Title 12.1 of the Century Code may be cited as the North Dakota Criminal Code.

'2. This title, except as provided in subsection 3 of this section, shall not apply to offenses committed prior to its effective date. Prosecutions for such offenses shall be governed by prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to the effective date of this title if any of the elements of the offense occurred prior thereto.

'3. In cases pending on or after the effective date of this title, and involving offenses committed prior thereto:

'a. The provisions of this title according a defense or mitigation shall apply, with the consent of the defendant; and

'b. The court, with the consent of the defendant, may impose sentence under the provisions of this title which are applicable to the offense and the offender.

'4. This section does not affect the power of a court or legislature to punish for contempt, or to employ any enforcement sanction authorized by law, nor does this section affect any power conferred by law upon military authority to impose punishment upon offenders.'

The term 'Title' refers to 12.1, NDCC, and embraces all of chapter 116 of the 1973 Session Laws, including § 42, stating the effective date, and § 41, containing the repealing clauses. The language 'This title . . . shall not apply to (an) offense(s) committed prior to its effective date,' has full application to its repeal provisions which, as applied to the present situation, means that § 12--38--04 has not been repealed. This language, coupled with the language that 'prosecutions for such offenses shall be governed by prior law which is continued in effect for that purpose' constitutes a saving clause, as referred to in § 1--02--17, NDCC, and in effect provides that the penalties and incarceration provisions under the prior law, § 12--38--04, NDCC, remain in full force as to crimes committed prior to the repeal. The combined effect and result of this language is that as to crimes committed prior to July 1, 1975, the section of law under which the individual is charged is not considered repealed and remains in full force and effect until all of the matter thereunder has been completed, except with specific consent of the defendant the later Act may be applied.

The petitioner specifically argues that the term 'prosecution' as used in the aforementioned statutory provision consists of the mere process of prosecuting, including the determination of guilt but does not encompass the...