Landreth, Application of

Decision Date16 April 1958
Citation324 P.2d 475,213 Or. 205
PartiesApplication of Roy Bert LANDRETH for a Writ of Habeas Corpus. Roy Bert LANDRETH, Respondent, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Appellant.
CourtOregon Supreme Court

Peter S. Herman, Asst. Atty. Gen., argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen.

Merlin Estep, Salem, argued the cause for respondent. On the brief were Hewitt & Estep, Salem.

McALLISTER, Justice.

This is a habeas corpus proceeding brought in the circuit court for Marion county by the plaintiff, Roy Bert Landreth, against Clarence T. Gladden, warden of the state penitentiary, as defendant. The lower court ordered the release of the plaintiff from custody subject to certain conditions to be later noted. The defendant appeals.

It appears from the record that on May 22, 1944, Landreth was convicted in the circuit court for Polk county of larceny by embezzlement and sentenced to a term of three years. Before he was taken to the penitentiary, an information under the habitual criminal act was filed in the same court accusing Landreth of having been convicted of four felonies including the larceny conviction of May 22, 1944. Two of the prior convictions were in the federal courts for violation of the national motor vehicle theft act, 18 U.S.C.A. § 2311 et seq., hereinafter referred to as the 'Dyer Act.' Landreth admitted that he was the person previously convicted of the four felonies listed in the information, and on May 25, 1944, was sentenced to life imprisonment. On the same day he was confined in the penitentiary to serve that sentence.

On May 30, 1956, Landreth filed in the circuit court for Marion county a petition for a writ of habeas corpus contending that his two convictions under the Dyer Act were erroneously included in finding that he was a fourth felony offender. The writ issued and the warden filed a return to the effect that he had the defendant in custody under the life sentence of May 25, 1944. The plaintiff filed an amended traverse to which the defendant demurred.

By an order entered January 17, 1957, the court found that the two Dyer act convictions should not have been considered in determining whether Landreth was an habitual criminal and that the life sentence was void. The court overruled the defendant's demurrer and ordered the release of plaintiff from custody but stayed the release for a period of 30 days to permit the return of the plaintiff to Polk county for the imposition of a valid sentence if demand for such proceeding was made by the state. 1

On January 21, 1957, the warden filed his notice of appeal to this court from the foregoing order.

A preliminary question is presented by a motion to dismiss this appeal, which motion was denied by this court with leave to renew at the hearing. The motion was renewed and is now before us.

It appears from the motion and the exhibits attached thereto that Landreth was returned to the circuit court for Polk county and that on February 13, 1957, an order was entered by that court which in effect:

(a) vacated the life sentence of May 25, 1944;

(b) found that Landreth had been convicted in Oklahoma of rape prior to his conviction in Oregon of larceny by embezzlement;

(c) resentenced Landreth on the larceny conviction to an indefinite term not exceeding 12 years, 8 months and 20 days; and

(d) gave the prisoner credit on the new sentence for the time served under the life sentnece.

With credit for time served under the life sentence, Landreth was discharged from the penitentiary on February 15, 1957. Plaintiff contends that such discharge was unconditional and renders this appeal moot.

The appeal is not moot and the motion to dismiss the appeal was properly denied. It has been definitely settled by the carefully considered opinion by Mr. Justice Brand in Macomber v. Alexander, 197 Or. 685, 698, 255 P.2d 164, 170, that a prisoner discharged from custody in habeas corpus by a circuit court has not been finally discharged until an appeal, if taken, has been decided by this court. We quote from that opinion, as follows:

'* * * When a trial court dismisses a writ and remands the prisoner to custody, the right of appeal is a valuable bulwark for the protection of the rights of the prisoner. When the trial court orders the discharge of a prisoner from custody, and the defendant, by appeal, secures a reversal of the order, no one is deprived of a constitutional right to be at large. A remand to custody occurs only when the court of last resort determines that the prisoner never should have been discharged in the first place. No statute such as O.C.L.A. § 11-428 should be construed to hold that a convict who receives an order of discharge to which he was never entitled is thereby freed from serving a lawful sentence. Any contention to the contrary is fallacious, and if adopted, would be disruptive of the administration of criminal justice.'

In this case the notice of appeal was filed before the further proceedings were had in Polk county but that fact is not controlling. The order of a circuit court in habeas corpus discharging a prisoner from custody would not be a final discharge until (a) an appeal, if taken, has been decided by this court, or (b) the time for taking the appeal has expired.

It further appears from the recitals in its order that the circuit court for Polk county in resentencing plaintiff acted pursuant to the order of the circuit court for Marion county holding the life sentence void. If we reverse the order entered in Marion county then all proceedings taken pursuant thereto in Polk county will also be invalidated.

We must first determine whether habeas corpus will lie in this case. This court has heretofore consistently held that habeas corpus will not lie unless the attacked judgment is void. Garner v. Alexander, 167 Or. 670, 120 P.2d 238; Macomber v. State, 181 Or. 208, 180 P.2d 793; Huffman v. Alexander, 197 Or. 283, 251 P.2d 87, 253 P.2d 289; Anderson ex rel. Poe v. Gladden, 205 Or. 538, 288 P.2d 823; and Smallman v. Gladden, 206 Or. 262, 291 P.2d 749.

The attorney general contends that habeas corpus will not lie in this case. He points out (1) that the maximum sentence authorized for a first offender convicted of larency by embezzlement was ten years; and (2) that because of Landreth's admitted prior conviction for rape, the court was required by § 26-2801, O.C.L.A. to sentence Landreth to a term not less than 10 nor more than 20 years. From this it is argued that even if the Dyer act convictions were excluded, the trial court was authorized to impose a sentence of 20 years and that habeas corpus will not lie until the 20 years have been served. The attorney general relies on the general rule that a prisoner can not be discharged on habeas corpus until he has served so much of the sentence as the court had power to pronounce.

The attorney general in support of his contention cites Ex parte Foster, 69 Or. 319, 138 P. 849, 851, where this court held that:

'The weight of precedents is to the effect that, where a court of general jurisdiction having authority over the person of a defendant and the subject-matter of the charge against him imposes upon him a punishment of the kind and at the place provided by law, nevertheless exceeding the term limited by statute, he cannot be discharged on habeas corpus until he has performed so much of the sentence as the court had power to pronounce. In re Bishop, 172 Mass. 35, 51 N.E. 191; In re Sellers, 186 Mass. 301, 71 N.E. 542; Ex parte Mooney, 26 W.Va. 36, 53 Am.Rep. 59; De Bara v. United States, 6 Cir., 99 F. 942; Ex parte Davis, C.C., 112 F. 139; In re Belt, 159 U.S. 95, 15 S.Ct. 987, 40 L.Ed. 88; in re Swan, 150 U.S. 637, 648, 14 S.Ct. 225, 37 L.Ed. 1207; In re O'Neill, 143 Cal. 634, 77 P. 660, 101 Am.St.Rep. 138; Perry v. Pernet, 165 Ind. 67, 74 N.E. 609, 6 Ann.Cas. 533; In re Petty, 22 Kan. 477; In re Nolan, 68 Kan. 796, 75 P. 1025; In re Butler, 138 Mich. 453, 101 N.W. 630; In re Fanton, 55 Feb. 703, 76 N.W. 447, 70 Am.St.Rep. 418; Ex parte Von Vetsera, 7 Cal.App. 136, 93 P. 1036; Ex parte Chase, 18 Idaho 561, 110 P. 1036. In brief, where there is an excessive sentence, or the language designating the term of imprisonment is inaccurate when compared with the terms of the statute, the judgment is not void, but merely erroneously or voidable, affording no relief by habeas corpus.'

In the later case of Harlow v. Clow, 110 Or. 257, 223 P. 541, 542, this court said:

'While there is some conflict among the authorities of other states, it is well settled in this state, and supported by the great weight of authority in other jurisdictions, that an excessive sentence is valid, as to that part of it which is authorized by law, and is void only as to the excess, especially whenever the valid portion of the judgment is separable from the excessive. 'In accordance with this view, habeas corpus will not lie to discharge a prisoner held under an excessive sentence before he has served or satisfied the authorized part of it. * * * But after the authorized part has been served or satisfied, further detention is illegal, and relief may be had by habeas corpus.' 29 C.J. 59, 60.'

The injustice which may result in this and other cases from a holding that habeas corpus will not lie to correct an excessive sentence is readily apparent. If we should now hold that Landreth is lawfully imprisoned for a term of 20 years, he would be entitled to whatever credits he may have earned under ORS 421.120. The good conduct statute was amended in 1957 to allow more liberal credits and by its terms the statute operates retrospectively. Assuming that Landreth was serving a 20 year sentence and that he was given the basic good conduct credits, he could have been released on September 22, 1957. If we hold now that habeas corpus will not lie, we would have to remand the...

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