Smith v. State
Decision Date | 19 February 1974 |
Docket Number | No. 1171S318,1171S318 |
Citation | 307 N.E.2d 281,261 Ind. 510 |
Parties | James SMITH, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Nola Allen, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.
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Appellant was charged by affidavit with the crime of carrying a pistol without a license. Upon a plea of guilty, appellant was sentenced to one year's imprisonment and fined $200 and costs. The sentence was suspended and appellant placed on probation for one year. Within the probationary period tye appellant was charged with having violated the terms of his probation in that he had been guilty of uttering a forged instrument. A hearing was had pursuant to IC 35--7--2--2, Burns' Ind.Stat.Ann. (1973 Supp.), § 9--2211, which statute reads as follows:
The trial judge found that appellant was in violation of his probation by reason of his conviction of uttering a forged instrument. Appellant's probation was, therefore, revoked, and the prior judgment set aside. The court then under authority of the statute sentenced the appellant to imprisonment in the Indiana State Reformatory for a period of ten years.
Appellant first contends the trial court erred in setting aside its previous judgment and imposing a sentence of ten years. It is appellant's argument that the above quoted statute is unconstitutional in that it deprived him of due process and a speedy trial and constituted double jeopardy.
With this we do not agree. The statute provides for a hearing at which the probationer may be represented by counsel. A determination is made as to whether or not cause exists for the revocation of the privilege previously extended. If a new judgment is imposed after the revocation of probation and the setting aside of the previous sentence, an appeal lies from that final judgment. Smith v. State (1973), Ind., 295 N.E.2d 612, 36 Ind.Dec. 320. The statute in question affords the person who accepts probation all due process guaranteed by the Constitution of the United States and the Constitution of Indiana.
Appellant argues that to sentence him anew is in effect double jeopardy. This same argument has been used in situations where an appellant has been successful in obtaining a reversal of a conviction and then has argued that a second trial would amount to double jeopardy. In North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, at pages 2079--2080, 23 L.Ed.2d 656, the United States Supreme Court addressed itself to this problem and at page 723 stated:
The situation in the case at bar is analogous. The appellant for obvious reasons for his own benefit chose to accept probation under the terms set forth by the trial court and under the conditions set out in the pertinent statutes. When he violates the probation so afforded him, he cannot be heard to complain that the operation of the statute constitutes double jeopardy. For the same reasons we cannot accept appellant's argument that he was denied a speedy trial by reason of the intervening period of probation.
In making this decision we are not unmindful of the decision of the Supreme Court of the United States in Roberts v. United States (1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41, where a federal statute of very similar wording to the Indiana statute was interpreted by Justice Black to mean that a person receiving a suspended sentence may not be sentenced anew upon the revocation of the suspension and be given a term exceding his original sentence.
The majority does not feel bound by Justice Black's decision in interpreting a similar federal statute. It is our thinking that the reasoning of Justice Frankfurter with whom Justice Reed concurred is much preferred when applied to the Indiana statutes and the cases which have previously interpreted that statute.
It should be pointed out that the majority opinion in the Roberts case implies that a sentencing judge under the statute has the choice of either rendering judgment by which the defendant is sentenced to a specific term or in withholding the passing of sentence and placing the defendant on probation with sentence to be passed at a later time. The Indiana Supreme Court has specifically ruled that to so withhold a sentence is a denial of the defendant's constitutional rights under Article 1, Section 12 of the Indiana Constitution which provides that:
'Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.'
Taylor v. State (1954), 233 Ind. 398, 120 N.E.2d 165. Thus this Court has held that under the Indiana statute a judge may not withhold sentence, but must, within a reasonable time, state the specific terms of the sentence. With this in mind, it would appear that if courts are to be encouraged to give suspended sentences, they must be given the latitude allowed within the plain wording of the statute to insure that a defendant accepting the terms of probation will do so with full realization of the gravity of the consequences of the violation of that probation.
If we were to hold today that a judge may not impose sentence greater than the sentence originally imposed at the time probation was accepted, we would leave trial judges with little recourse but to give the maximum time allowed by statute to every defendant to whom they intend to extend the privileges of a suspended sentence. Such a situation would severely damage the flexibility which the legislature obviously intended when the statute was passed.
The appellant has also raised a question on this appeal that the commitment issued by the Clerk of Marion County did not follow the judgment of the trial court in that the judgment of the trial court sentenced the appellant, who was at that time 24 years of age, to the Indiana Reformatory, but that the commitment ordered the appellant delivered to the Indiana State Prison. He also claims the commitment recites that there is a $200 fine imposed, whereas the judgment of the trial court does not impose such a fine. This matter was not called to the attention of the trial court by any pleading or in any manner revealed in this record. The appeal in this case lies from the judgment of the trial court and does not address itself to the commitment issued by the clerk of said court. However, this Court has on its own motion contacted the trial judge in this case and ascertained from said judge, who has furnished the clerk of this Court with a copy of his order therein, that the trial court has sua sponte orders the correction of the commitment in this cause. We find no reversible error in this record.
The trial court is, therefore, affirmed.
This statute like the Federal Probation Act enacted by Congress in 1925, and construed by the United States Supreme Court in Roberts v. United States (1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41, authorizes a sentencing judge, in a certain defined situation to suspend the imposition of a sentence of imprisonment, and to place the defendant on probation. The authority of courts to suspend the imposition of the sentence of imprisonment is defined and distinguished from their authority to suspend the execution of a sentence of imprisonment in the following sentence of I.C. 1971, 35--7--1--1, being Burns § 9--2209:
'In case the court shall impose a fine, with a concurrent sentence of imprisonment...
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