Niece v. State

• Citation: 456 N.E.2d 1081
• Decision Date: 14 December 1983
• Docket Number: No. 2-283A49,2-283A49
• Parties: Earl NIECE, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 1081

456 N.E.2d 1081

Earl NIECE, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-283A49.

Court of Appeals of Indiana,

Second District.

Dec. 14, 1983.

Scott L. Webb, Anderson, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Robert K. Johnson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge (Writing by Designation).

STATEMENT OF THE CASE

Earl Niece appeals the judgment of the Madison Superior Court Division 1, granting the state's motion to correct errors, vacating his guilty plea and sentencing, reinstating both counts of the information and the pleas of not guilty previously entered, and setting the case for trial. We affirm in part, reverse in part, and remand for further proceedings.

FACTS

Niece was charged in Count I with forgery, a class C felony, ¹ and in Count II with theft, a class D felony. ² The information was filed on December 21, 1981. Thereafter, on March 1, 1982, a plea agreement was entered into whereby Niece would enter a guilty plea to the forgery count, the state would dismiss the theft count, and the state would recommend a five (5) year sentence on the forgery count ³ with all but 30 days suspended. On March 15, 1982, the court accepted the plea agreement and sentenced Niece to five (5) years on the forgery count, with 30 days executed and the balance suspended. The theft charge was dismissed by the state.

On April 6, 1982, the state filed a motion to correct errors asserting fraud by Niece in that he told the probation officer he had no prior felony convictions, ⁴ and that Niece in fact had prior unrelated felony convictions. After several continuances, hearings were held on the state's motion to correct errors. At the hearing held on July 26, 1982, the probation officer testified that he could not state under oath that he asked if Niece had any prior felony convictions and that Niece answered in the negative. At a further hearing on November 29, 1982, the state proved a prior conviction of Niece for forgery in 1959.

The trial court then granted the state's motion, vacated the guilty plea and sentencing, reinstated both counts of the information and Niece's pleas of not guilty thereto, and set the case for trial.

ISSUES

The issues raised in this appeal, which we have renumbered and restated in the interests of clarity, are:

1. Did the court have the power to vacate the original sentencing?

2. Did the court's action violate the protection against double jeopardy?

3. Did the court have the power to reinstate the dismissed theft count?

4. Was the state's motion to correct errors so deficient procedurally that the court could not correct its sentencing error?

5. Was the corrective action of the trial court proper?

DISCUSSION AND DECISION

Issues One and Two

The fixing of penalties for crimes is the sole prerogative of the legislature not the trial courts. Bond v. State, (1980) Ind., 403 N.E.2d 812. Although vested with broad discretion in sentencing, a trial judge is required to act within statutorily prescribed limits. Rife v. State, (1981) Ind.App., 424 N.E.2d 188; Barnett v. State, (1981) Ind.App., 414 N.E.2d 965. Thus, a sentence which is contrary to, or violative of, the penalty mandated by the applicable statute is an illegal sentence. State v. Fry, (1979) 61 Hawaii 226, 602 P.2d 13. When a trial judge goes beyond the bounds set by the appropriate sentencing statute, that judge has exceeded the utmost reach of discretion. United States v. Denson, (5th Cir.1979) 603 F.2d 1143.

The applicable sentencing statute at the time of Niece's sentencing forbade suspension of a sentence of a person who had a prior unrelated felony conviction. Indiana Code section 35-50-2-2. ⁵ Thus, the sentence originally imposed by the trial court contravened this statute and was an illegal sentence. The question then presented by this state of facts concerns the power and duty of the court to correct the erroneous sentence.

Our supreme court has said that "[t]he power of a court of record to correct erroneous sentences and to impose proper ones has long been recognized." Williams v. State, (1954) 233 Ind. 327, 332, 119 N.E.2d 547, 549. Where a trial court has erroneously suspended a sentence in violation of a statutory proscription, our supreme court has reversed and remanded for correction of the sentence stating that "the trial court had no authority to enter an order suspending [the defendant's] sentence and was limited to sentencing the defendant under the [applicable statute]." State v. Palmer, (1979) 270 Ind. 493, 498, 386 N.E.2d 946, 950. Indeed, it is the general, if not unanimous, rule that a trial court has the power to vacate an illegal sentence and impose a proper one which results in an increased sentence, and may do so even if the illegal sentence has been partially executed. Bozza v. United States, (1947) 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818; Stuckey v. Stynchcombe, (5th Cir.1980) 614 F.2d 75; Denson; Thompson v. United States, (1st Cir.1974) 495 F.2d 1304; State v. Fry; State v. Fountaine, (1967) 199 Kan. 434, 430 P.2d 235; 21 Am.Jr.2d Criminal Law Sec. 583 (1981). Further, imposition of the corrected sentence, under such circumstances, does not run counter to the prohibition against double jeopardy. Bozza; Stuckey; Denson; Thompson; Fry. Niece's double jeopardy argument is put to rest by the foregoing authorities. In addition, our supreme court has held that a defendant is not put in jeopardy by a void judgment and may be re-prosecuted on the charge. Slack v. Grigsby, (1951) 229 Ind. 335, 97 N.E.2d 145.

It makes no difference whether the sentencing error followed a trial or a guilty plea, the court has the power to correct the illegal sentence in either case. For example, Palmer, Stuckey, and Fountaine, are guilty plea cases. Neither does the length of time intervening between the original erroneous sentence and the correction affect the court's power to correct the sentencing error. In Bozza, the delay was but five hours. However, in Fry and Fountaine, the elapsed periods of time were seven years and six years, respectively. The delay of eight months here is inconsequential, particularly where the state sought correction within a matter of three weeks. Here, the court not only had the power to correct the erroneous sentence, it was its duty to do so. Denson; Thompson.

Issue Three

The trial court's sua sponte action in reinstating the theft count which had been dismissed by the state was erroneous. Criminal actions may be instituted only by action of the prosecuting attorney in filing an indictment or information. Indiana Code section 35-3.1-1-1. ⁶ Count II charging Niece with theft, had been dismissed by the prosecuting attorney. The trial court ordered dismissal upon the motion of the prosecutor as required by statute. Indiana Code section 35-3.1-1-13(a). ⁷ If Niece is to be re-prosecuted on the theft count, the prosecuting attorney must seek to re-file the charge under Indiana Code section 35-34-1-13(b), unless such re-filing might be barred under the theory of vindictive prosecution. See Cherry v. State, (1981) Ind., 414 N.E.2d 301, cert. denied, 453 U.S. 946, 102 S.Ct. 17, 69 L.Ed.2d 1033; State v. Selva, (1983) Ind.App., 444 N.E.2d 329. This issue not being before us, we will refrain from any comment upon the applicability of Cherry and Selva to the facts of this case. However, we reverse the trial court's order reinstating Count II.

Issue Four

Having determined that the trial court had the power, even the duty, to correct its sentencing error, we turn to the procedural method employed by the state in seeking correction and by the court in granting such relief.

Niece contends the state's use of the motion to correct errors was improper because the state had no statutory right of appeal. Consequently, in his view, the court could not grant the state's motion to correct errors. He contends the state, if it had a right to seek correction of the sentence, had to follow the procedure set forth in Indiana Code section 35-4.1-4-17 ⁸ which provides:

"Correction of an erroneous sentence. If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence shall be in writing and shall be supported by a memorandum of law specifically pointing out the defect in the original sentence."

Niece is correct in his assertion that the state can appeal only those matters specifically authorized by statute. State v. Leslie, (1980) Ind.App., 406 N.E.2d 1194; State v. Holland, (1980) Ind., 403 N.E.2d 832. Appeals by the state are authorized in those instances specifically enumerated in Indiana Code section 35-38-4-2. Sentencing errors are not included in that statute. However, we must observe that the state is not the appellant here, Niece is. The state merely filed a motion to correct errors as a procedural device for obtaining correction of an erroneous sentence.

While the state may not have chosen the proper procedural method to obtain sentence correction, or may have improperly titled its motion, our courts have not exalted form over substance in similar cases.

In Palmer, the trial court suspended a first degree burglary sentence. Under the statute then in force, first degree burglary was a non-suspendable offense. The trial court held this statute unconstitutional. The state filed a motion to correct errors and appealed from the denial thereof. Our supreme court recognized the general rule that the state may appeal only when the defendant is acquitted, but said:

"To hold that this Court has no jurisdiction to act under these circumstances would appear to us to give meaning to the law, and to our pronouncements, that were never meant to be and that would tend to elevate form...