State v. Atkinson
| Citation | 532 P.2d 215 |
| Decision Date | 25 February 1975 |
| Docket Number | No. 13771,13771 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Von W. ATKINSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
Galen Ross, Salt Lake City, for defendant and appellant.
Vernon B. Romney, Atty. Gen., William W. Barrett, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
In October of 1972 a complaint was filed in the City Court of Salt Lake City charging the defendant with the crime of sodomy in violation of the then existing Section 76--53--22, U.C.A.1953. The offense allegedly occurred October 12, 1972, involved the defendant and a 14-year-old boy. After a preliminary hearing defendant was ordered bound over to the district court; and in information was filed charging the defendant with the said crime.
After numerous proceedings and continuances, the details of which are not material here, the defendant and his counsel finally appeared before the district court on January 24, 1974, and entered a plea of guilty to the crime of sodomy as charged in the information. Pursuant to appropriate orders the defendant was committed to the Utah State Hospital for 30 days for psychiatric examination and evaluation; and a further 90-day commitment to the Utah State Prison for the same purpose.
Meanwhile, after the commission of the offense, but prior to the sentencing, the new penal code enacted by the 1973 legislature had gone into effect. 1 Two sections of that code proscribe crime of the same general character of sodomy as dealt with in the old statute, Section 76--53--22, U.C.A.1953, under which the defendant was charged. The new Section 76--5--403(1) defines certain acts as sodomy. Subsection (3) classifies sodomy as a class B misdemeanor. For that class of misdemeanor the penalty is imprisonment not to exceed six months. 2 Section 76--5--403(2) defines the related crime of forcible sodomy which subsection (3) classifies as a second-degree felony. For that class of felony the penalty is imprisonment for an indeterminate term of one to fifteen years. 3
Defendant's contention is that because of the change in the law above referred to, he is entitled to the benefit of the lesser penalty in accordance with our ruling in the case of State v. Tapp. 4 In regard to that contention we make these observations: In one sense it could be said that the new statutes just referred to created two crimes, different and distinct from the sodomy stated in general terms in the old statute, Section 76--53--22, so that it is not necessarily true that the penalty for the crime the defendant was charged with, and to which he pleaded guilty, has been reduced. Nevertheless, the trial court in fact gave consideration to the change in the law.
After the defendant pleaded guilty to the crime as charged in the information, the court did not sentence the defendant to the indeterminate term of three to twenty years as provided for that offense, but took into consideration the newly enacted statutes which give lesser penalties for crimes of the nature of that to which the defendant had pleaded guilty. He conducted a hearing as to the facts of ...
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Von Atkinson v. Smith
...the old statute and the sentence imposed pursuant to the new statute. Atkinson v. Smith, No. 14,390 (Utah June 30, 1976); State v. Atkinson, 532 P.2d 215 (Utah 1975). The Utah Supreme Court agreed that appellee was entitled to a reduced sentence as provided by the new statute but dismissed ......