Parks v. Amrine

• Decision Date: 11 October 1941
• Docket Number: 35175.
• Citation: 154 Kan. 168,117 P.2d 586
• Parties: PARKS v. AMRINE, Warden.
• Court: Kansas Supreme Court

117 P.2d 586

154 Kan. 168

PARKS v. AMRINE, Warden.

No. 35175.

Supreme Court of Kansas

October 11, 1941

Syllabus by the Court.

Where petitioner, on appeal from order denying petition for writ of habeas corpus, filed in Supreme Court an original petition for habeas corpus, and such petition raised all questions to be considered, appeal could be dismissed without prejudice and consideration given to petition filed as an original proceeding.

Defendant who was convicted of second-degree forgery and sentenced to penitentiary after being previously convicted of a felony could not complain on habeas corpus that trial court failed to appoint counsel for defendant and refused defendant necessary time to prepare defense, where record showed that court advised defendant of his right to counsel and that defendant refused to take advantage of such right and there was no showing in record that defendant had desired time to prepare defense. Gen.St.1935, 21-107a, 21-608, 21-631 62-1304.

Under statute, a valid judgment and sentence in a criminal case is effective from time when it is rendered. Gen.St.1935 62-1518, and 62-1516, as amended by Laws 1941, c. 291.

When a valid judgment and sentence has been rendered in a criminal case, the trial court has no authority after sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this is done at same term of court.

Where defendant pleaded guilty to charge of forgery in second degree, for which statute provided a punishment in penitentiary of from one to ten years, and sentence was doubled because of evidence of one prior conviction of a felony, and three days after imposition of sentence defendant was again taken into court, and additional evidence of prior conviction was heard and former sentence was set aside and defendant sentenced to life imprisonment, the later sentence was void and sentence first imposed remained in force. Gen.St.1935, 21-107a, 21-608, 21-631, 62-1518, and 62-1516, as amended by Laws 1941, c. 291.

1. Under our statute, G.S.1935, 62-1518, a valid judgment and sentence in a criminal case is effective from the time it is rendered.

2. When a valid judgment and sentence has been rendered in a criminal case, the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this be done at the same term of court.

3. Defendant pleaded guilty to a charge of forgery in the second degree, for which our statute provides a punishment in the penitentiary of from one to ten years. Because of evidence of one prior conviction of a felony the sentence was doubled, the judgment being that defendant be taken from the bar of the court to the county jail and thence to the penitentiary to serve the sentence. Three days later defendant, still being held in the county jail through no request or fault of his own, was again taken into court, additional evidence of his prior conviction was heard, the former sentence set aside, and he was sentenced to life imprisonment. Held, the later sentence was unauthorized and is void, and the sentence first imposed remains in force.

Appeal from District Court, Leavenworth County; James H. Wendorff, Judge.

Habeas corpus proceedings by Herbert N. Parks against Milton F. Amrine, Warden of the Kansas State Penitentiary, wherein petitioner sought release from confinement in the state penitentiary at Lansing. From an order denying the petition, petitioner appealed and filed in the Supreme Court an original petition for habeas corpus.

Appeal dismissed without prejudice and petitioner remanded to be held under sentence first imposed.

Herbert N. Parks, pro se.

Jay S. Parker, Atty. Gen., and Jay Kyle, Asst. Atty. Gen., for appellee.

HARVEY Justice.

This is a habeas corpus proceeding. The petitioner, an inmate of the state penitentiary at Lansing, filed his application for a writ of habeas corpus in the district court of Leavenworth county, where a hearing was had January 17, 1941, and the petition denied. The petitioner promptly appealed from that order, which appeal was filed in this court on January 21. On January 27, 1941, the petitioner filed in this court an original petition for habeas corpus. Since this raises all the questions to be considered the appeal may be dismissed without prejudice and consideration given to the petition filed as an original proceeding in this court. A response has been filed by the warden. The court waived its rules respecting a deposit for costs and the printing of abstracts and briefs. Manuscript abstracts and briefs were filed, and at our July session the case was argued orally by the petitioner in person and by an assistant attorney general, since which time supplemental briefs have been filed by permission of the court. All the pleadings, arguments and briefs have been considered.

From the documents filed and from the oral argument it appears there is very little controversy respecting the facts, which may be summarized as follows: On March 28, 1930, the petitioner bought a small amount of goods from a merchant in Atchison and presented in payment therefor what purported to be a traveler's check for $20 on the American Travelers Association, guaranteed by the Beacon Trust Company of Boston. The merchant accepted the check, paying in cash the difference between the goods purchased and the face of the check. On taking the check to the bank it was discovered to be a forgery. A warrant charging petitioner with forgery of the check was duly issued out of the city court of Atchison, upon which defendant was arrested and brought into that court on April 4, where he waived a preliminary examination and was bound over to the district court. On April 5, 1930, the county attorney filed an information in the district court charging the petitioner in the first count with the forgery of the check and in the second count with having uttered it. Upon his arrest the petitioner told the officers of his having been an inmate of the state penitentiary of Colorado. On April 5, 1930, petitioner was taken into district court, whereupon the county attorney advised the court that the defendant previously had been convicted of a felony in the state of Colorado. The court informed defendent of the nature of the charge against him and the penalty therefor; "that it was his right to have the information read to him, to have the assistance of counsel and trial by jury, and, thereupon, the court inquired of the defendant if he desired or demanded the information read to him or the assistance of counsel, to which the defendant replied in the negative and the defendant did thereupon waive the reading of the information." The defendant then entered his plea of gulty to the first count of the information, which charged forgery in the second degree, G.S.1935, 21-608, and the county attorney dismissed the second count of the information. The court, upon defendant's plea, found him guilty of the offense first charged in the information; also found, from the statements of defendant made in open court, that he previously had been convicted of a felony, the punishment of which was by confinement in the state penitentiary of the state of Colorado, and inquired of defendant if he had any just cause or legal excuse to show why the judgment and sentence of the court should not be pronounced upon him; to which defendant replied that he had none. Whereupon the court adjudged and ordered: "That the defendant be taken from the bar of this court to the county jail and from thence to the penitentiary of this state located at Lansing, Kansas, there to be confined at hard labor for a term of not to exceed twenty years for the offense of forgery in the second degree as charged in the first count of the information and until released according to law, and that he pay the costs of this action. ***"

This sentence was double that provided by statute, G.S.1935, 21-631, for forgery in the second degree, the increased penalty being authorized by G.S.1935, 21-107a, because of his one prior conviction of a felony.

On the 8th day of April, 1930, which was one of the days of the same term of the district court, defendant, having been in the county jail since the judgment and sentence of the court was pronounced upon him on the 5th of April, was again brought into court. The journal of the court as to what then transpired reads:

"Thereupon, the defendant being summoned before the bar of the court, the court finds from the statements of the defendant made in open court and from other competent evidence that he has been four times heretofore convicted of a felony, punishment of which was by confinement in the penitentiary, the places of confinement being, First, from the United States District Court to the United States Penitentiary at Deer Lodge, Montana, for an offense committed within the state of Montana; second, from the United States District Court to the United States Penitentiary at Leavenworth, Kansas, for an offense committed in Nebraska; third, from the district court of Reno county, Kansas, to the state penitentiary of the state of Kansas; fourth, a conviction in the state of Colorado and confinement in the state penitentiary in the state of Colorado. The court further finds that the judgment and sentence of the court heretofore pronounced upon him herein should be set aside and vacated.

"It is therefore, by the court, ordered and adjudged, that the judgment and sentence of the court heretofore pronounced upon the defendant herein on the 5th day of April, 1930 be and same is hereby set aside and vacated. Thereupon the court inquires of the defendant if he had

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