Smith v. Com.
| Decision Date | 12 October 1953 |
| Citation | 77 S.E.2d 860,195 Va. 297 |
| Parties | JOHN LEWIS SMITH v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Supreme Court |
W. A. Hall, Jr., for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General and Thomas M. Miler, Assistant Attorney General, for the Commonwealth.
This is a companion case to M. L. Royster, etc. v. John Lewis Smith, decided at this session of the Court. The opinion in that case sets forth the relevant facts preceding the transfer of custody of John Lewis Smith, the plaintiff in error in this case, and defendant in error in that case, to the Circuit Court of Page county.
On September 22, 1952, when John Lewis Smith, hereinafter designated as defendant, under the order of the Circuit Court of Goochland county in the habeas corpus proceeding was taken to the Circuit Court of Page county, the latter court, following the erroneous decision of the former court, declared that the two sentences for burglary imposed upon defendant on February 23, 1949, were null and void. Whereupon defendant was resentenced to five years in the penitentiary on each of the two indictments, the court 'directing such sentences to run concurrently the same to stand in substitution of the erroneous sentences heretofore pronounced on said prisoner by this court on February 23, 1949.' This writ of error was granted defendant for the purpose of reviewing that judgment.
The decisive question presented is whether a trial court, after a defendant has executed in full a voidable sentence imposed by it, may set that sentence aside and substitute a new sentence increasing the punishment prescribed in the original sentence.
The indictments, arraignment, trial and conviction of defendant were regular and valid in all particulars. The two original sentences were erroneous and reversible on an appeal, but they were not void, nor were they subject to a collateral attack. Defendant acquiesced in the erroneous sentences and fully paid the penalty imposed by serving all of the required time in the penitentiary. Since September 30, 1951, he has been entitled to be discharged from custody under both of these sentences. Indeed, the superintendent of Virginia State Farm only claimed the right to his custody by virtue of a conviction and sentence as a third offender by the Circuit Court of the city of Richmond.
The Attorney General strenuously objected to defendant being transferred to the Circuit Court of Page county for resentence, or for any other purpose. However, when defendant over his objection, was taken to the Circuit Court of Page county, the Commonwealth's Attorney of the county moved the court to declare the original sentences null and void, to set them aside and impose a new and additional sentence upon defendant on the same indictments. This motion was sustained and the new sentences were imposed as stated. While the Commonwealth was represented in the two courts by different officials, the contentions of the two officials in the two courts are inconsistent. If the original sentences were immune from collateral attack in the Circuit Court of Goochland county, they were likewise immune from such an attack in any other court, including the Circuit Court of Page county.
A final judgment, in either a civil or criminal case, remains under the control of the trial court and (Italics supplied) Rules of Court section 1:9. *
The question presented in this case is quite different from the questions presented in Powell v. Commonwealth, 182 Va. 327, 28 S.E. (2d) 687 and Crutchfield v. Commonwealth, 187 Va. 291, 46 S.E. (2d) 340. In each of these cases we were dealing with an invalid and void sentence and held in accord with the general rule, that a trial court may impose a valid sentence in substitution for one that is void, even though the prisoner had begun the execution of the void sentence. The first part of section 477, Criminal Law, 15 Am.Jur. 132, was quoted with approval in the Powell case in support of the principle stated. The last part of this section was not...
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