State ex rel. Schock v. Barnett

• Decision Date: 22 July 1953
• Docket Number: No. 32544,32544
• Citation: 259 P.2d 404,42 Wn.2d 929
• Court: Washington Supreme Court
• Parties: STATE ex rel. SCHOCK, v. BARNETT, Judge.

Page 929

42 Wn.2d 929

259 P.2d 404

STATE ex rel. SCHOCK, v. BARNETT, Judge.

No. 32544.

Supreme Court of Washington, Department 1.

July 22, 1953.

Kenneth C. Hawkins, Yakima, Douglas Wilson and Walter V. Swanson, Yakima, for plaintiff.

Ronald Hull, Pros. Atty., Yakima, for respondent.

OLSON, Justice.

The question presented by this proceeding is whether or not the trial court has the power to consider a petition for probation, filed by a defendant after the judgment and sentence imposed upon him has been affirmed on appeal.

Defendant was found guilty of a felony by a jury in Yakima county, and sentenced to the penitentiary. He made no motion for probation or for the suspension of the sentence when it was imposed, but appealed to this court. The judgment and sentence was affirmed. State v. Schock, 1952, 41 Wash.2d 572, 250 P.2d 516. Rehearing was denied, and the remittitur was filed in the office of the county clerk of Yakima county, January 26, 1953. Defendant filed a petition for probation, January 27, 1953, which was before he actually was confined to serve his sentence. The trial court ruled that it had no jurisdiction to consider the petition, and did not pass upon its merits. That ruling is now before us for review by certiorari.

The question presented can and must be answered by considering only our own statutes and previous decisions. Whatever conclusion has been reached in other jurisdictions, state or Federal, is not controlling, because of the lack of similarity between the basic statutes prevailing here and those in effect elsewhere.

These portions of the following statutes are pertinent:

RCW 9.92.060 [cf. Rem.Supp.1949, § 2280] provides for the suspension of sentences and states that the court may, in its discretion, 'at the time of imposing sentence', direct that such sentence be stayed and suspended.

RCW 9.95.200 [cf. Rem.Supp.1949, § 10249-5a], providing for the granting or denial of probation after conviction, contains a proviso 'That probation shall not be granted to any person who is not eligible under the law to receive a suspended sentence.'

RCW 9.95.210 [cf. Rem.Supp.1949, § 10249-5b] authorizes the court, in granting probation, to suspend the imposition or the execution of the sentence.

The court has no inherent power to suspend a sentence. State ex rel. Zbinden v. Superior Court, 1925, 135 Wash. 458, 463, 238 P. 9, 240 P. 565, and case cited. The terms of the statute granting this power are mandatory. State ex rel. Comer v. Hall, 1933, 173 Wash. 188, 194, 22 P.2d 295, and cases cited. If the statutory provisions are not followed, the action of the court is void. Id., 173 Wash. at page 196, 22 P.2d 295. The same rules apply to probation. The court must act within the limits of the statutes. State v. Farmer, 1951, 39 Wash.2d 675, 678, 237 P.2d 734. As is true of suspension a convicted defendant has no right to probation. Its grant or denial rests solely within the sound discretion of the trial judge. Id.

Suspension of the execution of defendant's sentence, upon his petition for probation, necessarily would be an exercise of the court's power to stay or suspend that sentence. This power is conditioned upon its exercise at the time the sentence is imposed. Reading the cited statutes together, as we are obliged to do by their terms, we find no provision authorizing the court to suspend or stay a sentence upon a petition for probation at any time other than at 'the time of imposing sentence.'

Affirmance of the order in this case also can be supported by the following rules, relied upon in the well-prepared memorandum opinion of the trial judge.

After an appeal is taken, the trial court loses its jurisdiction over the subject matter of the appeal, and cannot change its judgment or orders entered before the appeal. Sewell v. Sewell, 1947, 28 Wash.2d 394, 396, 184 P.2d 76, and cases cited. The judgment of this court is final and conclusive upon all the parties properly before it. RCW 2.04.220 [cf. Rem.Rev.Stat., § 14]. The superior court can only enforce such a judgment. It is powerless to change it. In re Ellern, 1947, 29 Wash.2d 527, 529, 188 P.2d 146, and cases cited. In fact, the judgment is self-executing, in that no warrant of commitment or other further action by the trial court is necessary to implement the execution of a sentence imposed in a final judgment. In re Whipple v. Smith, 1949, 33 Wash.2d 615, 617, 206 P.2d 510, and cases cited.

When judgment is entered or, in the event of an appeal, when the remittitur affirming such judgment is filed in the lower court, the sentence commences to run. RCW 9.95.060, 10.73.030 [cf. Rem.Supp.1947, § 10249-2, Rem.Rev.Stat., §§ 1745, 1746]; State ex rel. McCoske v. Kinnear, 1927, 145 Wash. 686, 689, 261 P. 795.

The entry of final...