Moore v. Hand

• Citation: 187 Kan. 260,356 P.2d 809
• Decision Date: 12 November 1960
• Docket Number: No. 41898,41898
• Parties: Paul MOORE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: United States State Supreme Court of Kansas

Page 809

356 P.2d 809

187 Kan. 260

Paul MOORE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing Kansas, Appellee.

No. 41898.

Supreme Court of Kansas.

Nov. 12, 1960.

Syllabus by the Court

In an appeal from an order denying an application for a writ of habeas corpus the record is examined and, as fully set forth in the opinion, it is held that petitioner has established no ground to justify his release from custody.

Paul Moore was on the brief pro se.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the brief, for appellee.

PRICE, Justice.

This is an appeal from an order of the district court of Leavenworth county denying an application for a writ of habeas corpus.

On December 20, 1957, the petitioner, Paul Moore, was duly arraigned in the district court of Butler county in case No. 5879, in which he was charged with the offense of issuing a worthless check. He was represented by counsel and entered a voluntary plea of guilty, and was sentenced to the state penitentiary for the term prescribed by law. Upon his application he was, on the same day, granted a bench parole and was allowed to go at large under bond.

On March 16, 1959, for good cause shown, his parole was revoked and petitioner found himself again before the court.

At the time petitioner entered his plea of guilty on December 20, 1957 in case No. 5879, there also were pending against him two similar informations in the same court, each of which charged an offense under the worthless-check act, and being cases Nos. 5821 and 5823. These two mentioned cases were still pending when petitioner's parole was revoked. On March 17, 1959, the day following the revocation of his parole, petitioner was duly arraigned in cases Nos. 5821 and 5823. He was represented by counsel and in each case entered a voluntary plea of guilty. He was sentenced to confinement in the state penitentiary in each case.

In this habeas corpus action petitioner makes three contentions.

He first contends that the judgment and sentence in case No. 5879 is void because of the fact the journal entry contains a recital that the sentence was imposed under G.S.1949, 21-534 and 21-535, they being the penalty statutes for grand larceny and petty larceny, respectively, whereas he was charged with and pleaded guilty to the offense of giving a worthless check under G.S.1949, 21-554, the penalty for which is prescribed by 21-555.

Entirely aside from the fact the journal entry in case No. 5879 specifically refers to the offense as being that of giving a worthless check, thus rendering the offense involved readily identifiable, it is obvious that the reference to 21-534 and 21-535, instead of 21-554 and 21-555, is merely a typographical error on the part of the one preparing the journal entry, and, as such, may be, and should be, corrected by an order nunc pro tunc. Converse v. Hand, 185 Kan. 112, 115, 116, 340 P.2d 874; Tafarella v. Hand, 185 Kan. 613, 617, 618, 347 P.2d 356, certiorari denied 363 U.S. 807, 80 S.Ct. 124, 4 L.Ed.2d 1150. Petitioner's contention with respect to this point is entirely without merit and is not sustained.

Petitioner further contends that the prison officials have booked him as serving consecutive sentences, whereas they should be concurrent, and we are referred to G.S.1959 Supp. 62-2251, which provides that a prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released unless otherwise ordered by the court in imposing sentence for the new offense.

The contention is not good. The mentioned statute is inapplicable. The offenses charged in cases Nos. 5821 and 5823 were not committed while petitioner was at large on parole in case No. 5879--for, as heretofore related, those charges were pending at the time he entered his plea of guilty in that case. Furthermore, under the provisions of G.S.1949, 62-1512, the running of the sentences in question consecutively rather than concurrently is proper. In Beck v. Fetters, 137 Kan. 750, 22 P.2d 479, it was held:

'The common-law rule that where a person is convicted of two or more offenses about the same time, and there is nothing in the sentences specifying whether the imprisonment is to run concurrently or consecutively, they will run concurrently, was abrogated by the statute, R.S. 62-1512, which provides that sentences upon second or subsequent convictions shall commence at the termination of the term of imprisonment adjudged on prior convictions.

The policy of the statute is controlling in Kansas.' (syl. 1.)

and said:

'Under a statute, where a person is convicted of serveral offenses, the court in sentencing the defendant on the second or subsequent conviction is expressly directed to impose the penalty of imprisonment to commence at the termination of the former imprisonment.' 137 Kan. at page 752, 22 P.2d at page 480.

In addition--and irrespective of the sentences imposed in cases Nos. 5821 and 5823--petitioner has not yet served the sentence in case No. 5879, and therefore is not entitled to his release.

And finally--petitioner contends that he is entitled to his release because he was not brought to trial in cases Nos. 5821 and 5823 until after three terms of court had elapsed following the filing of the informations in those cases, and reliance is had on section 10 of our Bill of Rights which guarantees to every accused a right to a speedy public trial, and on G.S.1949, 62-1432, which provides that if an accused on bail is not brought to trial before the end of the third term after the information is filed he shall be...