McNutt v. Delmore, 33275

• Decision Date: 13 October 1955
• Docket Number: No. 33275,33275
• Citation: 47 Wn.2d 563,288 P.2d 848
• Parties: Application for a Writ of Habeas Corpus of Ralph McNUTT, Petitioner, v. Lawrence L. DELMORE, Jr., as Superintendent of the Washington State Penitentiary at Walla Walla, Respondent.
• Court: Washington Supreme Court

Page 563

47 Wn.2d 563

288 P.2d 848

Application for a Writ of Habeas Corpus of Ralph McNUTT, Petitioner, v. Lawrence L. DELMORE, Jr., as Superintendent of the Washington State Penitentiary at Walla Walla, Respondent.

No. 33275.

Supreme Court of Washington, En Banc.

Oct. 13, 1955.

Ralph McNutt, petitioner, per se.

Don Eastvold, Atty. Gen., Michael R. Alfieri, Asst. Atty. Gen., for respondent.

PER CURIAM.

The petitioner is an inmate of the penitentiary at Walla Walla. On May 16, 1950, he entered a plea of guilty in King county to an information for petit larcey. Subsequently, but before sentence had been pronounced, he was adjudicated to be an habitual criminal by reason of having been convicted in Oregon of the crime of knowingly uttering and publishing a false and forged bank check, which is a felony in the state of Washington.

RCW 9.92.090 (cf. Rem.Rev.Stat. § 2286) provides that the penalty for such an habitual criminal as the petitioner, shall be 'improsonment in the state penitentiary for not less than ten years.' This minimum penalty, however, is not the sentence prescribed by law for the reason that RCW 9.95.010 (cf. Rem.Supp.1947, § 10249-2, part) provides, inter alia:

'The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term. If the law does not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment, but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years.' (Italics ours.)

On June 16, 1950, the trial court erroneously imposed a sentence of imprisonment in the penitentiary 'for not less than ten years.' On December 22, 1950, the trial court entered an order directing an armed guard to return the petitioner to King county. On February 1, 1951, the trial court entered an order setting aside the judgment and sentence, declaring it to be erroneous under RCW 9.95.010 (cf. Rem.Supp.1947, § 10249-2, part). On the same day a nunc pro tunc judgment and sentence, as of June 16, 1950, was entered by the trial court, sentencing the petitioner to a term of not more than twenty years.

Petitioner now seeks release by writ of habeas corpus. His theory is that the trial court had no power to vacate, set aside, or correct the first sentence imposed upon him; that the second sentence was therefore void; and that he can not be held under it. As to the first sentence, he contends that it was erroneous so that there is no valid judgment and sentence under which he can be held.

Petitioner...