Landaw v. State, 171S5
| Decision Date | 28 February 1972 |
| Docket Number | No. 171S5,171S5 |
| Citation | 279 N.E.2d 230,258 Ind. 67,29 Ind.Dec. 378 |
| Parties | Edward Eugene LANDAW, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
George P. Roberts, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellee; M. Daniel Friedland, Indianapolis, of counsel.
The appellant entered a plea of guilty to entering to commit a felony and was sentenced to a term of not less than one nor more than ten years. Several months after his release on parole, he was returned to prison as a parole violator. He thereupon filed a petition for post conviction release seeking to have his sentence set aside and asking for a discharge order.
The appellant argued in his petition that his sentence constituted 'cruel and unusual punishment' in that it was not proportional to the offense. This point rests on the fact that entering to commit a felony is a lesser included offense of second degree burglary and, as we held in Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815, a lesser included offense cannot carry a greater penalty than the higher offense. In Hobbs v. State (1969), Ind., 252 N.E.2d 498, we had occasion to assess a situation similar to the present one, and there reduced the appellant's sentence from the original one to ten year sentence imposed by the trial court to a sentence of one to five years, holding that the maximum penalty for second degree burglary (five years) cannot be exceeded by the maximum penalty for a lesser included offense of second degree burglary.
In the case before us, the lower court did reduce the appellant's sentence from one to ten years to one to five years, in accordance with our holdings in Dembowski, supra, and Hobbs, supra. However, that court refused to set the sentence aside and to order the appellant's discharge. This appeal challenges that refusal on the grounds that 'there is neither constitutional nor legislative authority for a judicial reduction of appellant's constitutionally tainted sentence which was originally imposed in this case.' Thus, the appellant argues that if his original sentence was unconstitutional, the proper remedy is discharge, and not a correction of the sentence to an acceptable maximum. The statute clearly calls for a penalty of not less than one nor more than ten years and the judicial branch of our government has no power to rewrite that statute.
That this argument has force cannot be doubted. It...
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Bond v. State
...as the elected representative body, not the trial courts. Lowe v. State, (1973) 260 Ind. 610, 298 N.E.2d 421; Landaw v. State, (1972) 258 Ind. 67, 279 N.E.2d 230. The judiciary cannot usurp a legislative function by creating standards for imposing the death penalty. As was stated in Gregg v......
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Hart v. State
...line of cases providing that Entering to Commit a Felony is a lesser included offense under the Burglary Statute. See, Landaw v. State (1972), Ind., 279 N.E.2d 230; Easton v. State (1972), Ind., 280 N.E.2d 307; Heathe v. State (1971), Ind., 274 N.E.2d 697; Hobbs v. State (1969), 253 Ind. 19......
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Rowe v. State
...deciding the appropriate penalties for crimes committed in this State is a function properly exercised by the Legislature. Landaw v. State (1972), Ind., 279 N.E.2d 230. At the same time we recognize our responsibility to make certain that when the Legislature exercises its broad discretion ......
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US v. Landaw, SCr. 88-84.
...included offense of entering with intent to commit a felony could carry no greater penalty than the higher offense. Landaw v. State, 258 Ind. 67, 279 N.E.2d 230 (1972). A. Mr. Landaw claims that neither of his two state convictions may be used as predicates for enhancement purposes under th......