State v. Chesnut

• Decision Date: 20 October 1960
• Docket Number: No. 9258,9258
• Citation: 11 Utah 2d 142,356 P.2d 36
• Parties: d 142 STATE of Utah, Plaintiff and Appellant, v. Sherrill Z. CHESNUT, Defendant and Respondent.
• Court: Utah Supreme Court

Page 36

356 P.2d 36

11 Utah 2d 142

STATE of Utah, Plaintiff and Appellant, v. Sherrill Z. CHESNUT, Defendant and Respondent.

No. 9258.

Supreme Court of Utah.

Oct. 20, 1960.

Walter L. Budge, Atty. Gen., Robert S. Campbell, Jr., Asst. Atty. Gen., for appellant.

Henry L. Adams, Salt Lake City, for respondent.

CALLISTER, Justice.

An appeal by the State from the order of the lower court denying a motion for an order to show cause why the defendant's probation should not be terminated.

On January 5, 1960, the defendant entered pleas of guilty to two felony charges. The District Court for Sevier County entered judgment and imposed sentence upon the defendant. The court thereupon, and acting pursuant to Section 77-35-17, ¹ U.C.A.1953 suspended the execution of the sentence and placed the defendant on probation. At that time, the following took place:

'The Court: The Court, however, in this case, suspends execution of sentence for a period at this time of sixty days until March 14, 1960, at the hour of 2:00 o'clock p. m. This suspension is on condition that you remain under the custody and supervision of your bondsman, Mr. McCarthy, and that except with his consent, I will say, that you remain outside of Sevier County, except with Mr. McCarthy's consent or in case you are summoned to appear here at any time in court and you will be required to appear, however, on March 14th and for such further action as the court might see fit to take.

'I will say frankly, this is a chance to make good without having to serve time in State Prison and if you make good on this, why there will be further extensions until you will have an opportunity to clear yourself of the matter, but that will depend on you entirely, of course. We want to give you this opportunity rather than to require you to serve, except if it becomes imperative, I will say. We see no other reasonable way, so we feel that everybody involved in this is doing it for what we feel is your best interest and that you will be duly appreciative of it and make every effort to make entirely good. Not only with us, but with your bondsman and everybody concerned, so at this time you are released to your bondsman and the bond will remain in force as it now is.

'Mr. Chamberlain: Your Honor, I would like the record to show that he is under the strict supervision and control of his bondsman with respect to whatever * * *

'The Court: With respect to what he does and his course of conduct. That is what I really intended--under the control and supervision.

'Mr. McCarthy: I will call you and Mr. Chamberlain once in a while to let you know what is going on.

'The Court: But if the thing is justified, we will make the extensions longer. It depends entirely on, I would say, your course of conduct, which we hope will be in every way satisfactory.' (Emphasis ours.)

Subsequently, on February 4, 1960, the district attorney filed with the trial court a motion for an order directed to the defendant why the suspension of the sentence should not be terminated and he be committed to the State Prison. This motion was based upon the affidavit of the district attorney to the effect that the defendant had committed and confessed to the perpetration of other felonies while on probation. The trial court denied this motion and the State appeals.

In denying the State's motion, the trial court gave the following as reasons:

'(1) That the attempted probation arrangement entered into in connection with said Stay of Execution...