Orabona v. Linscott

• Decision Date: 31 December 1928
• Docket Number: Nos. 479, 480.,s. 479, 480.
• Parties: ORABONA v. LINSCOTT, Warden. SAME v. SUPERIOR COURT.
• Court: Rhode Island Supreme Court

144 A. 52

ORABONA

v. LINSCOTT, Warden.

SAME

v. SUPERIOR COURT.

Nos. 479, 480.

Supreme Court of Rhode Island.

Dec. 31, 1928.

Petitions by James Orabona for writ of habeas corpus to be directed to Charles E. Linscott, Warden, and for writ of certiorari to be directed to the Superior Court, to procure petitioner's release, and set aside a sentence complained of as illegal. Petitions denied and dismissed.

Pettine, Godfrey & Cambio, of Providence, for petitioner.

Oscar L. Heltzen, Asst. Atty. Gen., for respondents.

STEARNS, J. These two petitions, No. 479 for a writ of habeas corpus, and No. 480 for a writ of certiorari, present the same question and are based on the same agreed statement of facts.

Petitioner seeks release from an alleged illegal sentence. June 12, 1923, he was sentenced to the state prison for assault with a dangerous weapon. The same day he pleaded nolo contendere to indictment No. 11679 for assault with intent to murder. The Attorney General and petitioner signed an agreement, as follows: "It is hereby agreed that sentence may be deferred on the above entitled indictment upon payment of all costs, during the good behavior of the defendant, and so long as the Attorney General is satisfied that the defendant has broken none of the criminal laws of this state, since the date of this agreement." The jacket entry on the indictment is: "Sentence deferred and ball reduced to $1,000, and defendant gives personal recognizance in the sum of $1,000."

June 28, 1927, petitioner was arrested and charged with an assault to murder one Messere and one McCormick. Immediately after his arraignment petitioner was brought in on a capias to the superior court, where the Attorney General moved for sentence on the old indictment, No. 11679. The justice continued the motion for the purpose of satisfying himself of petitioner's misconduct, before imposing sentence. Thereafter two indictments were found against petitioner, on one of which, charging the assault on McCormick, defendant was after trial found not guilty by a jury; the other indictment has not been tried. On November 9, 1927, after hearing counsel and considering the facts, the justice sentenced petitioner to the state prison on indictment No. 11679. Petitioner claims this sentence is illegal for the following reasons: (I) The Attorney General had no power to make an agreement to defer sentence. (II) The court had no power to enter into or sanction such an agreement.

I. Article 7, "Of the Executive Power," section 12, of the Constitution, provides that the duties and powers of the Attorney General shall be the same as are now established, or as from time to time may be prescribed by law. Under the Constitution and by long-established practice great power and responsibility for the enforcement of the criminal laws are lodged in the Attorney General. He has control of his docket for the trial of criminal cases, and after they are set down, and due notice has been given, he may try them in such order as he sees fit. State v. Silvius, 22 R. I. 322, 47 A. 888. His control of the prosecution, of course, is regulated by the constitutional provision (article 1, § 10) that the accused shall have a right to a speedy and public trial, and by Gen. Laws 1923, c. 407, § 57, that every person indicted for murder and certain other felonies and imprisoned under the indictment shall be tried or bailed within six months after he shall plead to such...