State v. District Court In and For Cass County

• Decision Date: 15 January 1957
• Docket Number: No. 49042,49042
• Citation: 80 N.W.2d 555,248 Iowa 250
• Parties: STATE of Iowa, Plaintiff, v. DISTRICT COURT of the State of Iowa IN AND FOR CASS COUNTY, Honorable Bennett Cullison, Judge of the 15th Judicial District, Defendants.
• Court: Iowa Supreme Court

Page 555

80 N.W.2d 555

248 Iowa 250

STATE of Iowa, Plaintiff, v. DISTRICT COURT of the State of Iowa IN AND FOR CASS COUNTY, Honorable Bennett Cullison, Judge of the 15th Judicial District, Defendants.

No. 49042.

Supreme Court of Iowa.

Jan. 15, 1957.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Lester L. Kluever, County Atty., Atlantic, for plaintiff.

Jones, Cambridge & Carl, Atlantic, for defendants.

WENNERSTRUM, Justice.

This is an original certiorari action in this court by the State of Iowa wherein it is claimed the district court of Cass County, Honorable Bennett Collison, Judge, exceeded its jurisdiction in granting Code L. Hammer a bench parole. He had entered a plea of guilty to a county attorney's information charging him with operating a motor vehicle while intoxicated, fourth offense. This court ordered issuance of a writ of certiorari to review the court's action in granting the parole. Subsequently counsel for the respondent filed a motion to quash the writ. The motion was ordered submitted with the case.

It appears from the county attorney's information Code L. Hammer was originally charged with operating a motor vehicle while intoxicated and sentence was entered against him August 30, 1941. Later Hammer was charged with a second offense of driving while intoxicated and sentence was entered against him in Cass County October 18, 1946. A third charge of driving while intoxicated was subsequently brought against him in Cass County and sentence against him was entered May 22, 1953. The charge of operating a motor vehicle while intoxicated, fourth offense, was filed September 12, 1955. To this charge the defendant originally entered a plea of not guilty. It is in connection with the judgment entered against Code L. Hammer for this offense that this proceeding has developed.

On February 20, 1956 Hammer withdrew his plea of not guilty and entered a plea of guilty to the crime of operating a motor vehicle while intoxicated, fourth offense. On the 14th of April, 1956 Code L. Hammer was sentenced to be imprisoned in the State Penitentiary for a term of three years, as provided in section 321.281, 1954 Code, as amended, I.C.A. The judgment entry states: '* * * that the sentence herein imposed be and the same is hereby suspended during the defendant's good behavior and said defendant is hereby paroled to the State Board of Parole and such agents as may be designated by it. * * *'

It is the contention of the state that in paroling Code L. Hammer the court exceeded its jurisdiction and acted illegally for the reasons: a. That by the terms of section 321.281 anyone convicted of operating a motor vehicle while intoxicated for the third offense and each offense thereafter, shall be imprisoned in the penitentiary for a period not to exceed three years. That by the very terms of this section the Court exceeded its authority. b. That by the terms of section 247.20 of the 1954 Code, as amended, I.C.A., the trial court before which a person has been convicted of certain crimes may suspend the sentence and parole said person during good behavior only if said person has not previously been convicted of a felony. That by pleading guilty to the County Attorney's Information Code L. Hammer acknowledged and admitted his previous conviction of a felony and the Court exceeded its jurisdiction or otherwise acted illegally in granting said parole.

On behalf of the respondent court it is contended: 1. The only mode of review available to the state in a criminal cause after final judgment is by appeal, regardless of whether the judgment is legal or illegal. 2. This court has no jurisdiction in this cause in that no notice has been given Code L. Hammer of this proceeding and inasmuch as his personal rights are involved he has not been accorded due process. 3. A conviction under section 321.281 is of a misdemeanor only. 4. All convictions of a violation of section 321.281 are for the same basic offense and are therefore misdemeanors. 5. Inasmuch as the trial court had jurisdiction of the defendant and, as claimed, all violations of the above section are misdemeanors the granting of a parole is not void and may be attacked only by appeal.

The respondent court at the time of sentencing Code L. Hammer stated: '* * * There is only one offense--operating a motor vehicle while intoxicated. The charge in the indictment that it is a first, second, or third offense is irrelevant. If it is only one offense then it must be a misdemeanor because it cannot in all cases or even a majority of them be punished by imprisonment in the penitentiary. * * *

'So if the offense is one, as the Supreme Court has said it is for the purpose of trial and conviction, it must remain one for present purposes. This is the only logical solution to the problem which takes into consideration the actualities to which the legal principles must be applied.'

Counsel for the respondent further supplements the court's comments by maintaining there is only one crime charged--driving while intoxicated, first offense, and a conviction or plea of guilty to subsequent offenses only goes to the punishment.

I. In an early Iowa case, Tiedt v. Carstensen, 61 Iowa 334, 335, 16 N.W. 214, we held a proceeding by certiorari '* * * is intended as a remedy whereby the superior court may inquire into the jurisdiction of the inferior tribunal or officer and determine whether the tribunal or officer 'is acting illegally'. * * *' We so held in the case of State v. Gaffney, 237 Iowa 1399, 1403, 25 N.W.2d 352. And in Home Owners' Loan Corp. v. District Court, 223 Iowa 269, 272, 272 N.W. 416, we held certiorari was the proper procedure for review where the district court claimed it had jurisdiction to allow a mortgage foreclosure continuance and an appeal was not necessary or proper. We therein quoted from Davis v. District Court, 195 Iowa 688, 693, 192 N.W. 852, 854, where it was held if the order goes beyond the discretion and authority of the court or the court exceeds its jurisdiction, it is subject to review by certiorari. It is our responsibility to determine here whether the respondent exceeded its jurisdiction in granting the parole to Hammer.

II. A court has no power to suspend the operation of a sentence pronounced by it unless that power is conferred by statute. Pagano v. Bechly, 211 Iowa 1294, 1296, 232 N.W. 798. See also State ex rel. Hammond v. Hume, 193 Iowa 1395, 1399, 188 N.W. 796; State v. Voss, 80 Iowa 467, 470, 45 N.W. 898, 8 L.R.A. 767.

Any statutory authority by which the respondent acted is found in section 247.20, 1954 Code, I.C.A., as follows: 'Parole by court. The trial court before which a person has been convicted of any crime except treason, murder, rape, robbery, arson, second or subsequent violation of any provision of title VI, or of the laws amendatory thereof, may, by record entry, suspend the sentence and parole said person during good behavior:

'1. If said person has not previously been convicted of a felony. * * *'

III. We must determine whether the respondent had authority under the statute to suspend the sentence and grant a parole. The determination of this question depends on whether Code L. Hammer had previously been convicted of a felony.

The statute defines a felony as, '* * * a public offense which may be punished with death, or which is, or in the discretion of the court may be, punished by imprisonment in the penitentiary or men's reformatory.' Section 687.2, 1954, 1950 Code, I.C.A.

Section 321.281, 1954, 1950 Code, I.C.A., which sets forth the penalties that may be imposed upon conviction of operating a motor vehicle while intoxicated, is as follows: 'Operating while intoxicated or drugged--* * *. Whoever, while in an intoxicated condition * * *, operates a motor vehicle upon the public highways of this state, shall, upon conviction or a plea of guilty, be punished, for the first offense by a fine of not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for a period of not to exceed one year, or by both such fine and imprisonment; for the second offense by a fine of not less than five hundred dollars, nor more than one thousand dollars, or by imprisonment in the penitentiary for a period of not to exceed one year, or by both such fine and imprisonment; and for a third offense and each offense thereafter by imprisonment in the penitentiary for a period not to exceed three years.'

It may be of interest to repeat what is said in Graham v. State of West Virginia, 224 U.S. 616, 618, 32 S.Ct. 583, 585, 56 L.Ed. 917, 921: 'The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted. Statutes providing for such increased punishment were enacted in Virginia and New York as early as 1796 and in Massachusetts in 1804; and there have been numerous acts of similar import in many states. This legislation has uniformly been sustained in the state courts. [Citing cases.]'

Since the prior conviction increases the punishment for the new crime we hold where this punishment may be a penitentiary sentence a conviction or plea of guilty is a conviction of a felony. We see no merit in the contention of the respondent that each violation of section 321.281 is merely a first offense. A charge of successive convictions is a new and separate charge which carries with it the punishment provided by the statute. Consequently the sentence on a charge of violating section 321.281, second offense, carried with it a possible penitentiary sentence and was a felony. Thus Code L. Hammer had previously been convicted or had pleaded guilty to an offense which the statute provided might be punished by imprisonment in the...