Smith v. Lovell

• Decision Date: 26 December 1950
• Citation: 146 Me. 63,77 A.2d 575
• Parties: SMITH v. LOVELL, Warden.
• Court: Maine Supreme Court

Page 575

77 A.2d 575

146 Me. 63

SMITH v.LOVELL, Warden.

Supreme Judicial Court of Maine.

Dec. 26, 1950.

Carl George Smith, petitioner, pro se.

Ralph W. Farris, Atty. Gen., and John S. S. Fessenden, Deputy Atty. Gen., for respondent.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, WILLIAMSON, JJ.

MERRILL, Justice.

On report.This cause arises on a petition for a writ of mandamus.The petitioner is confined in the Maine State Prison in execution of sentence.The respondent is the warden of said prison.The petitioner alleges that he is eligible to parole under the provisions of R.S. Chap. 136, Sec. 14; that it is the duty of the respondent as warden of the prison to furnish him a 'blank application for parole' to enable him to make application therefor under the provisions of R.S. Chap. 136, Sec. 15; that the warden though requested therefor refused and refuses to furnish the petitioner such blank application for parole in violation of the petitioner's rights under said Sec. 15.The petitioner seeks a writ of mandamus to enforce his alleged right to receive said 'blank application' to enable him to apply for the parole to which he claims he is eligible.

On the petition, after notice, a Justice of the Supreme Judicial Court issued the alternative writ.The respondent made return thereto, to which the petitioner demurred.After joinder by the respondent, the Justice of the Supreme Judicial Court, the parties consenting thereto, reserved the questions of law arising thereon and reported the case to the Law Court with the following stipulation: 'If the demurrer is sustained, case to be remanded to a Justice of the Supreme Judicial Court for the issuance of the peremptory writ as prayed for, otherwise, if demurrer denied process to be dismissed.'

Without recital of the pleadings, in Extenso, the determinative issue in the case is whether or not the petitioner is 'eligible to parole' under R.S. Chap. 136, Sec. 14.If he is, it is the legal duty of the respondent under R.S. Chap. 136, Sec. 15 to furnish him the 'blank application for parole' provided for therein to enable him to make application therefor.

From the petition and the return the following facts appear.The prisoner is in execution of a sentence to the State Prison of not less than one and one-half years and not more than three years.This sentence was imposed on May 10, 1949.By its terms 'This sentence is to begin at the expiration of the sentence in case No. 8742.'Previously and on the same day in case No. 8742the petitioner had been sentenced to imprisonment in the State Prison for a term of 'not less than three and one-half years, and not more than seven years'.Warrants for commitment issued upon both sentences on said May 10, 1949, and the petitioner was then committed to the State Prison where he has ever since been confined.

On September 8, 1950this Court sustained exceptions to the denial of a writ of error attacking the conviction and sentence in case No. 8742, seeSmith v. State of Maine, Me., 75 A.2d 538.Certificate thereof was filed in the Clerk's office in Knox County(the county where the proceedings in error were pending) on September 9, 1950.On October 2, 1950 the Justice of the Superior Court before whom the writ of error was pending signed and filed in said office the following order pursuant to the mandate from the Law Court: 'The conviction for escape from the Cumberland County jail is reversed and the sentence vacated.Ordered: The prisoner, to wit, Carl G. Smith unless held upon some process in no way dependent upon said conviction or sentence, is hereby discharged.'This order was 'Certified to Maine State PrisonOctober 2, 1950.'

The petitioner claims that as the conviction in case No. 8742 has been reversed and the sentence therein vacated on writ of error, the sentence in execution of which he is now in custody commenced on the date it was imposed and the warrant of commitment issued, notwithstanding the fact that it 'was to begin at the expiration of the sentence in case No. 8742'.If this contention of the petitioner be correct the minimum term of his present imprisonment, with the deduction provided by law, had expired when he requested the blank application for parole and the petitioner then was and now is eligible to parole.R.S. Chap. 136, Sec. 14.

The respondent on the other hand claims that 'the expiration of the sentence in case No. 8742' did not occur until the conviction in case No. 8742 was reversed and the sentence therein vacated.If this contention of the respondent be sustained the petitioner is not eligible for parole.

In this State it has ever been the practice to impose cumulative or consecutive sentences upon separate convictions, the subsequent sentence to take effect upon the expiration of the former.This practice was recognized in Re Breton, 93 Me. 39, 44 A. 125, at least with respect to misdemeanors, and in Smith v. State, 142 Me. ----, 45 A.2d 438, with respect to felonies.This is correct practice whether the several convictions are upon separate counts in the same indictment, or under separate indictments.

The leading case upon the subject is Kite v. Commonwealth, 11 Metc. 581, 585.In an able opinion by Chief Justice Shaw the Massachusetts court said: 'The court are all of opinion that it is no error in judgment, in a criminal case, to make one term of imprisonment commence when another terminates.It is as certain as the nature of the case will admit; and there is no other mode in which a party may be sentenced on several convictions.Though uncertain at the time, depending upon a possible contingency that the imprisonment on the former sentence will be remitted or shortened, it will be made certain by the event.If the previous sentence is shortened by a reversal of the judgment, or a pardon, it then expires; and then, by its terms, the sentence in question takes effect, as if the previous one had expired by lapse of time.Nor will it make any difference, that the previous judgment is reversed for error.It is voidable only, and not void; and, until reversed by a judgment, it is to be deemed of full force and effect; and though erroneous and subsequently reversed on error, it is quite sufficient to fix the term at which another sentence shall take effect.'

This opinion has been cited and quoted by so many courts that a review of the many decisions would serve no useful purpose.It is to be noted, however, that the Supreme Court of the United States in the case of Blitz v. United States, 153 U.S. 308, 14 S.Ct. 924, 38 L.Ed. 725, which will be discussed later, gave it its unqualified approval, including that portion dealing with the vacating of the prior sentence on writ of error.

In a later Massachusetts case, Dolan's Case, 101 Mass. 219, 223, the court said: 'But the validity of such additional sentences is never affected by the contingencies which render the duration of previous terms uncertain.Kite v. Commonwealth, 11 Metc. 581. The time fixed for the execution of the second sentence is not the end of the limited period from the date of the order of commitment in the first case, but the end of the imprisonment under the first sentence, however that may be legally terminated.'

This opinion like the former one in Kite v. Commonwealth was cited with approval by the Supreme Court of the United States in the Blitzcase, supra.

Another leading case, and one exactly in point in the instant case is Brown v. Commonwealth, 4 Rawle, Pa., 259.This case was decided and reported several years prior to Kite v. Commonwealth and has been often cited.In this case the prisoner on the same day was sentenced for larceny to five years' imprisonment, and also to one year's imprisonment for breach of prison, the latter sentence 'to commence and take effect immediately after the expiration of the sentence passed on him for the larceny of the goods of Hiram Jones.'The first sentence was reversed on error, and after the elapse of a year from the date of sentence the prisoner sought his discharge from the second sentence on the ground that it had expired by its own limitation, the preceding one having been a nullity.The court rendered the following opinion: 'The preceding sentence, though erroneous, was not void.On the contrary, it was in full force, till it was reversed, and would protect the officer from an action of trespass for false imprisonment.Having been thus in force, it expired, for all legal purposes, at the time of its reversal, and the period of the subsequent one which was dependent on it, began to run.The confinement which the prisoner has undergone, therefore is referable to the prior sentence, and not to the succeeding one, which taking effect from the termination of the former is yet in force.'

These general principles of law announced in these decisions are set forth in 15 Am.Jur. Page 125, Sec. 468: 'The fact that an intermediate sentence is held to be void does not entitle the prisoner on the expiration of the term imposed for the preceding sentence to be discharged, but his imprisonment under the last sentence should begin immediately, and commencement of the term of a sentence of imprisonment to take effect immediately after the expiration of a prior sentence is, if such prior sentence is reversed, the date of such reversal.'

The petitioner in his brief cites as contra to the foregoing principles and cases, Ex parte Roberts, 9 Nev. 44, 16 Am.Rep. 1, Gregory v. Queen, 15 Q.B. 974 and also Blitz v. United States, supra.An analysis of these cases, however, shows that they are not in point.In Blitz v. United Statesthe defendant had been convicted on each of three counts of an indictment.At nisi prius and prior to sentence, he moved in arrest of judgment on all three counts.The motion was sustained as to the second count and overruled as to the first and third.Thereupon he was sentenced to imprisonment for one year and a day on the first...