State ex rel. Pence v. Koch

• Decision Date: 03 July 1933
• Docket Number: 24312.
• Citation: 173 Wash. 420,23 P.2d 884
• Parties: STATE ex rel. PENCE v. KOCH, Justice of Peace.
• Court: Washington Supreme Court

23 P.2d 884

173 Wash. 420

STATE ex rel. PENCE v. KOCH, Justice of Peace.

No. 24312.

Supreme Court of Washington, En Banc.

July 3, 1933

Appeal from Superior Court, Adams County; Matt L. Driscoll, Judge.

Proceeding by the State, on the relation of Paul Pence, against J. P Koch, as Justice of the Peace of Ritzville Precinct, Adams County, to review an order of the Justice revoking the suspension of a jail sentence theretofore imposed by him on the relator. From a judgment enjoining the Justice from enforcing the jail sentence, the Justice appeals.

Reversed and remanded, with direction.

George H. Freese, of Ritzville, for appellant.

Richard B. Ott, of Ritzville, for respondent.

MAIN Justice.

This is an appeal from a judgment of the superior court restraining a justice of the peace from enforcing a jail sentence which that officer had imposed upon a defendant in a criminal case.

Paul pence, together with another, was charged in the justice of the peace court with the crime of petit larceny, to which they both pleaded guilty. They were sentenced to pay the costs, and each was given '30 days jail. Suspended.' This judgment was entered June 24, 1931. The defendants paid the costs. June 21, 1932, or approximately a year later, the prosecuting attorney made an application, to the same justice who imposed the sentence, for an order revoking the suspension as to Paul Pence. Upon a hearing, at which Pence was represented by counsel, and on June 27, 1932 the justice of the peace entered an order revoking the suspension as to this defendant. Pence took the matter Before the superior court for review, and, after a hearing there that court entered a judgment which enjoined the justice of the peace from enforcing the jail sentence which had been imposed upon Pence, and from this judgment the justice of the peace appeals.

The question presented upon this appeal is whether the justice of the peace had power to revoke the suspension and require the defendant to serve the jail sentence.

Section 2280, Rem. Rev. Stat., provides that: 'Whenever any person never Before convicted of a felony or gross misdemeanor shall be convicted of any crime [except certain crimes therein specified], the court may in its discretion at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine. * * *'

The provision of this statute with reference to the suspension of sentence is applicable to a justice of the peace court as well as the superior court. State ex rel. Graham v. Willey, 168 Wash. 340, 12 P.2d 393. It will be observed that by the statute, when a sentence is suspended, it is required that the sentenced person be placed 'under the charge of a parole or peace officer.' In the case now Before us, when the justice of the peace suspended the sentence, he did not place either of the defendants 'under the charge of a parole or peace officer,' as required by the statute. Not having complied with the legislative requirement in this regard, the suspension of the sentence was void, but that portion of the judgment which imposed the sentence remained valid and enforceable. The suspension being void and the sentence being valid, the court had jurisdiction to revoke the suspension and require the defendant to serve the sentence.

In State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 P. 29, 32, 26 A. L. R. 393, it was said:

'We cannot see any possible reason why a court should be without power to enforce its sentence simply because it has, without authority of law or contrary to such authority, undertaken to suspend the operation of the sentence. [Citing and reviewing authorities.]

'It will thus be noted that some of the cases cited by the appellant hold that, after the court has made a void order suspending the execution of sentence, it loses jurisdiction to enforce the sentence, while other of such cases hold to the contrary. We are unable to follow those courts which hold that the trial court has exhausted his power and authority upon the making of a void order suspending the execution of sentence.'

In State ex rel. Comer v. Hall (Wash.) 22 P.2d 295, 298, it was said:

'The court did not, at the time of the suspension of the operation of the sentence, or later, place the relator in charge of any parole officer. It follows that the order suspending the sentence was absolutely void, because of noncompliance with the statutory provision that sentence shall not be suspended in any case unless the prisoner 'be placed under the charge of a parole officer.'

'The trial court, however, did not lose jurisdiction to enforce the penitentiary portion of the judgment and sentence it rendered against the defendant, however void its suspension of that portion of the sentence may be. [Reviewing authorities.] The incorporation within the judgment pronouncing sentence of an order suspending execution of that sentence does not affect the validity or finality of the judgment. It follows that the revocation or vacation of the order of suspension, because of its invalidity, or for any other reason, does not affect the validity or finality of the original judgment in the case.'

Where the suspension order is void or is set aside for any other reason, the court retains jurisdiction to enforce the sentence, even though the period covered by that sentence had expired at the time of the revocation. In this case, the jail sentence was for thirty days, and the setting aside of the...