Powell v. State, 15910.

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Calhoun
• Citation: Powell v. State, 63 S.W.2d 712, 124 Tex. Crim. 513 (Tex. Crim. App. 1933)
• Decision Date: 07 June 1933
• Docket Number: No. 15910.,15910.
• Parties: POWELL v. STATE.

63 S.W.2d 712

POWELL v. STATE.

No. 15910.

Court of Criminal Appeals of Texas.

June 7, 1933.

State's Rehearing Denied October 25, 1933.

Commissioners' Decision.

Appeal from District Court, Tom Green County; John F. Sutton, Judge.

Clint Powell was convicted of robbery with firearms. From the action of the trial judge in entering nunc pro tunc sentence correcting original sentence, defendant appeals.

Amended sentence set aside and first judgment affirmed.

W. A. Anderson, of San Angelo, for appellant.

Glenn R. Lewis, Dist. Atty., of San Angelo, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, Judge.

This appeal is from the judgment of the district court of Tom Green county correcting the sentence entered on the minutes at a prior term of said court.

The record discloses that the appellant was convicted January 20, 1932, of the offense of robbery with firearms, which case was No. 3398 in the district court of the Fifty-First judicial district of Tom Green county, and his punishment was assessed at a term of five years' confinement in the penitentiary. The sentence of conviction was imposed on February 12, 1932. His motion for new trial was overruled, to which he excepted and gave notice of appeal, and afterwards perfected his appeal to this court. His appeal to this court was dismissed on June 24, 1932, at appellant's request. It appears from the record that the appellant had been convicted prior to this conviction in cause No. 3398 in cause No. 3334 on the same docket. After the appellant's cause had been dismissed in this court at his request, it seems that the judge of the Fifty-First judicial district caused to be issued a bench warrant to the sheriff of Tom Green county in cause No. 3400, wherein an indictment was pending against this appellant in said court for theft, commanding the said sheriff to call upon the authorities of the state penitentiary for appellant and convey him to the jail of Tom Green county to answer said indictment in said cause No. 3400. The warrant was duly executed, and the appellant was returned to the jail of Tom Green county about November 15, 1932. On November 22, 1932, while appellant was being held in jail under the bench warrant in cause No. 3400, the state filed a motion in cause No. 3398 praying for a nunc pro tunc order to correct the sentence in said court so as to make the sentence cumulative of the sentence in No. 3334, alleging in substance that the district attorney did not learn until after the expiration of the term that the sentence pronounced against the appellant in cause No. 3398 was not made cumulative of the sentence in cause No. 3334. They served appellant with notice of this application, and over the appellant's protest on hearing the district judge entered a sentence nunc pro tunc as of date of the former sentence attempting to change the former sentence so as to show and make said sentence in cause No. 3398 cumulative of the sentence imposed in said court in cause No. 3334, from which action on the part of the trial court this appeal has been perfected to this court. The docket further shows that sentence nunc pro tunc was not entered at the same term in which the former sentence was pronounced but at a subsequent term and some months after the appellant had begun to serve his time under the former sentence entered on February 12, 1932.

The appellant contends that the court was without jurisdiction to enter said amended sentence because of the fact that he had already endured punishment under the first sentence. In this contention we believe that the appellant is correct. Under the original sentence as shown in the minutes of the court, the appellant's sentence in cause No. 3398 was caused to run concurrent with the cause No. 3334 against the appellant, while the sentence nunc pro tunc in said cause provides that the sentence in cause No. 3398 should take effect from and after the expiration of the sentence in cause No. 3334. Regarding the power of the court to change his sentence, we quote from Bishop's New Criminal Procedure (2d Ed.) vol. 2, § 1298, as follows: "The power of the court to alter its docket entries and records during the term wherein they are made, includes the right within such time to revise, correct, and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence—for example, a substantial part execution thereof—will cut off the right to alter it, even during the term, and with the expiration of the term the power expires."

The Supreme Court of the United States in Ex parte Lange, 18 Wall. 163, 176, 21 L. Ed. 872, held that the trial court was without power at the term in which the conviction was had to set aside a sentence under which punishment had been endured. It seems to be well established by the authorities in other states that a court has power to revise, correct, or vacate a sentence imposed during the term of the court in which the conviction was had and before the original sentence has gone into operation or action is had under it. Regarding such power after the sentence has gone into operation, the general rule is set forth in the notes in 44 A. L. R. (Annotated) at page 1203, as follows: "It seems to be well established that a trial court is without power to set aside a sentence after the defendant has been committed thereunder, and impose a new or different sentence increasing the punishment, even at the same term at which the original sentence was imposed. A judgment which attempts to do so is void, and the original judgment remains in force."

Many cases are cited in support of this holding, some of them being Ex parte Lange, supra; State ex rel. Curtis v. Heflin, 19 Ala. App. 222, 96 So. 459; Williams v. State, 125 Ark. 287, 188 S. W. 826, L. R. A. 1917B, 586; Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann. Cas. 718; Gordon v. Johnson, 126 Ga. 584, 55 S. E. 489; State v. Warren, 92 N. C. 825; State v. Cannon, 11 Or. 312, 2 P. 191. This court has upheld said holding in the case of Turner v. State, 116 Tex. Cr. R. 154, 31 S.W.(2d) 809, 810.

When an appeal is taken, the sentence begins from the date of the mandate of the appellate court whether the judgment was affirmed or whether the appeal was dismissed at the request of the appellant. See Ex parte Carey (Tex. Cr. App.) 64 S. W. 241. It will thus be seen from the record itself that, the appellant's appeal being dismissed on June 24, 1932, his sentence began running from the time that the mandate of this court was issued, and therefore it appears that before the sentence, which is herein appealed from, had been entered, the appellant had already served in the penitentiary two or more months under the sentence as originally entered by the court at a former term.

If the second sentence should be permitted to stand, appellant would, in addition to the punishment he had already suffered under the first sentence, be incarcerated in the penitentiary for not less than two, nor more than five, years after the expiration of the sentence in cause No. 3334. As said in Turner v. State, supra: "The effect of the action of the court would be to punish appellant twice for the same offense. Under our Constitution, `no person, for the same offense, shall be twice put in jeopardy of life or liberty. Const. art. 1, § 14.'"

We are constrained to hold that it was beyond the power of the court to set aside the original sentence under the facts as shown by the record in this case. Such being the case, the last sentence was illegally imposed, and cannot be enforced. The first...