State ex rel. Lillemoe v. Tahash
| Decision Date | 26 April 1968 |
| Docket Number | No. 40821,40821 |
| Citation | 159 N.W.2d 99,280 Minn. 176 |
| Parties | STATE of Minnesota ex rel. Donovan L. LILLEMOE, Appellant, v. Ralph H. TAHASH, Warden Minnesota State Prison, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The term of imprisonment of a sentence does not begin to run when it is imposed but when execution is ordered and a defendant is committed to imprisonment under the sentence and passes from the control of the court into the control of the executive.
2. Where execution of a sentence imposed is stayed, imprisonment for the term specified is suspended and a defendant remains under the control of the court and receives no credit by which the term of his imprisonment is diminished by the passage of time during the period of the stay.
3. The expiration of the term of imprisonment for two separate offenses is affected by whether the terms specified are to be served consecutively or concurrently. Where, on imposition, the second sentence is to be served consecutively after expiration of the first and a stay of execution is ordered, the sentencing court, upon vacating the stay, has no power to modify the term previously imposed by ordering it to be served concurrently with the prior term.
C. Paul Jones, Public Defender, R. J. Wolf, and Rosalie Wahl, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., David J. Byron, Sp. Asst. Atty. Gen., St. Paul, for respondent.
Heard before KNUTSON, C.J., and MURPHY, ROGOSHESKE, SHERAN and PETERSON, JJ.
A writ of habeas corpus issued on defendant's petition was discharged after a hearing, and he appeals.
The question presented is whether the term of defendant's imprisonment under two separate 5-year sentences has expired. We hold that it has not expired and affirm the decision of the habeas court.
On September 1, 1961, the court sentenced defendant to a maximum 5-year term of imprisonment upon his conviction after a plea of guilty to the crime of receiving stolen property. Execution of this sentence was stayed, and during such time defendant was placed on probation. On June 19, 1962, the stay was vacated following the filing of an information charging defendant with the crime of assault in the first degree. On June 28, 1962, defendant was convicted on his plea of guilty of the assault charge and two prior felony convictions. A limited sentence of not to exceed 5 years was imposed, the execution of which was stayed by the following order:
Defendant's term of imprisonment under the sentence for receiving stolen property commenced on June 28, 1962, when he was received at the prison. He remained in prison until March 30, 1965, when he was released on parole. While he was serving the remaining term of his first sentence on parole, defendant reappeared before the sentencing court as required by the terms of the stay on the second sentence. After several hearings, the stay of execution of his sentence for the assault offense, entered on June 28, 1962, was continued and he was placed on probation concurrently with his parole from prison on the stolen-property offense. His probation was revoked on December 31, 1965, and his parole on January 12, 1966, for violating an ordinance prohibiting illegal possession of firearms. In vacating the stay on the assault sentence, the court made the following order:
'It is ordered that the probation heretofore granted to you be vacated and set aside.
'It is further ordered that sentence heretofore imposed upon you be executed forthwith.
'It is further ordered that in the event that your parole is vacated with respect to another charge, that this sentence, or it is recommended that this sentence and any other sentence that may be executed be served by you concurrently.'
The prison record shows that when defendant was returned to prison for violation of his parole, a warrant of commitment under the 5-year sentence for assault accompanied him and that sentence was added as a consecutive sentence and the two sentences treated as a 10-year term commencing on June 28, 1962, the date of his original commitment. This term, less 118 days credited for jail confinement and time granted for good behavior computed for the full term, is scheduled to expire on March 6, 1969, if there is no loss of such 'good time.'
Defendant argues that the term of his 'sentence' on the assault conviction began to run when it was imposed on June 28, 1962, and the court so intended when it was 'ordered' or 'recommended' that 'this sentence * * * be served' concurrently with the prior term. Thus, he claims that he is entitled to be released from custody because both sentences have now expired.
1--2. The error of defendant's contention is that the term of imprisonment of a sentence where execution is postponed does not begin to run when it is imposed. It commences only after execution is ordered and a defendant is committed to imprisonment under the sentence. 21 Am.Jur. (2d) Criminal Law, § 573. 1 It is at this time, when a defendant passes from the control of the court into the control of the executive either while in prison or on parole, that the passage of time is credited against the term imposed together with his statutory right to diminish the term specified by time granted for good behavior. 2 Where, as expressly authorized by statute, 3 execution of the sentence imposed or pronounced is stayed, with or without conditions, imprisonment for the term specified is suspended and a defendant remains under the authority and control of the court. Except for the statutory limitation on the period a stay may continue, 4 a defendant receives no credit by which the term of his imprisonment is diminished by either the passage of time or good behavior. State ex rel. Ahern v. Young, 273 Minn. 240, 141 N.W.2d 15...
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...or part of each term of which is served simultaneously...." BLACK'S LAW DICTIONARY 264 (5th ed. 1979). Cf. State ex. rel. Lillemoe v. Tahash, 280 Minn. 176, 159 N.W.2d 99, 102 (1968). Clearly, then, both Carnine's and the government's understanding of "concurrently" fit this meaning. Absent......
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