State v. Felton

Decision Date06 March 1965
Docket NumberNo. 44074,44074
Citation399 P.2d 817,194 Kan. 501
PartiesSTATE of Kansas, Appellee, v. Johnny Victor FELTON, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. An issue as to whether a prior conviction must precede the commission of the principal offense in order to enhance the punishment under the habitual criminal statute presents a question of law which can properly be raised by motion pursuant to the provisions of K.S.A. 60-1507.

2. In this jurisdiction an irregular or erroneous sentence is considered to be the same as a void sentence and within the power of a court to correct by the substitution of a new and valid sentence.

3. Following the general rule it is held that in order to enhance the punishment authorized by the Habitual Criminal Act (K.S.A. 21-107a) it is a prerequisite that the prior conviction or convictions relied on precede the commission of the principal offense.

James M. Brewster, Mission, argued the cause and was on the briefs for appellant.

Bernis G. Terry, Asst. County Atty., argued the cause, and Robert Londerholm, Atty. Gen., and Hugh H. Kreamer, County Atty., were with him on the briefs for appellee.

PARKER, Chief Justice.

This is an appeal from an order of the district court of Johnson County, Kansas, denying appellant's motion under K.S.A. 60-1507 to vacate, set aside or correct a prior judgment and sentence of that court in a criminal action.

The facts required for a proper understanding of the issue involved on appellate review will be related as briefly as the state of the record permits.

On March 23, 1956, appellant, who at all times was represented by competent court-appointed counsel, was convicted by a jury in the district court of Johnson County of the crime of robbery in the first degree, as defined by G.S.1949, 21-527 [now K.S.A. 21-527], which was alleged in the amended information to have occurred on November 17, 1954.

On April 2, 1956, his motion for a new trial having been overruled, appellant appeared before the court for sentencing and, pursuant to appellee's notice to proceed under the Habitual Criminal Act (G.S.1949, 21-107a [now K.S.A. 21-107a]), the court received in evidence, without objection, an authenticated copy of appellant's conviction, on December 14, 1954, of the crimes of burglary and grand larceny, in the district court of Sedgwick County.

Thereupon, in view of his previous felony conviction in Sedgwick County, appellant was sentenced by the district court of Johnson County to confinement and hard labor in the Kansas State Penitentiary under G.S.1949, 21-530 [now K.S.A. 21-530] and 21-107a, supra, for not less than twenty nor more than forty-two years, and took no appeal from his judgment and sentence.

In passing we note there is nothing in the record disclosing the date upon which the crimes resulting in the Sedgwick County conviction were committed. However the record does definitely reflect that appellant's conviction and sentence in the Sedgwick County court occurred approximately a month after the date on which he was charged with having committed the Johnson County offense. Thus it becomes abvious that the commission of the Johnson County offense of November 17, 1954, antedated the Sedgwick County conviction and sentence of December 14, 1954.

On May 4, 1964, pursuant to the provisions of K.S.A. 60-1507, appellant filed a motion in the district court of Johnson County to vacate, set aside and correct his judgment and sentence of April 2, 1956. This motion was overruled on May 6, 1964. On May 28, 1964, appellant filed a petition for rehearing which was overruled on the same day. Later, and on June 25, 1964, appellant filed a notice of appeal from the court's order of May 6, 1964, an affidavit to proceed in forma pauperis, and a motion for court appointment of counsel. On the same day the court entered an order wherein it authorized appellant to proceed in forma pauperis, and appointed James M. Brewster, a competent attorney of Mission, to represent him for the purpose of this appeal. Mr. Brewster accepted that responsibility and since his appointment has filed a proper record and brief and orally argued the cause on the date appellant's appeal was heard by this court on its merits.

Boiled down the over-all issue raised by appellant in the instant case may be stated thus:

That at the time of sentencing appellant in the Johnson County court it was erroneous and improper for that court to apply the Habitual Criminal Act (K.S.A.21-107a) where the authenticated copy of a prior conviction in Sedgwick County, which was relied upon by the sentencing court as requiring the application of such act, affirmatively disclosed that such prior conviction had been obtained, as shown by the amended information and the verdict of the jury in the Johnson County case, after the commission of the offense resulting in the second conviction.

From the foregoing issue, supported by an uncontroverted record from the standpoint of controlling facts on which it is based, it appears that we are confronted with a question of law that, contrary to contentions advanced by appellee, can properly be raised by motion pursuant to existing provisions of K.S.A. 60-1507 which, so far as here material, read:

'(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the * * * laws of the state of Kansas, * * * or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.

'(b) Hearing and judgment. * * * If the court finds * * * that the sentence imposed was not authorized by law or is otherwise open to collateral attack, * * * the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'

'(d) Appeal. An appeal may be taken to the supreme court from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.'

For an interesting discussion, supporting what has just been stated and dealing at length with the rights afforded to prisoners under the provisions of 60-1507, supra, as implemented by this court's Rule No. 121 (now appearing in Volume 193, Advance Sheet No. 4 of the Kansas Reports), see the first three pages of the opinion in State v. Richardson, 194 Kan. ----, 399 P.2d 799 (this day decided).

The issue, to which we have previously referred, requires consideration and construction of our Habitual Criminal Act, K.S.A. 21-107a, which reads:

'Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction; and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.'

Inherent in the over-all issue involved, when it is stripped of all excess verbiage, is the decisive question whether, in order to enhance punishment under the Habitual Criminal Act, the offense on which a second or subsequent conviction is based (here the Johnson County offense of November 17, 1954) must, from the standpoint of the date of its commission, follow the date of the first conviction (here the Sedgwick County conviction of December 14, 1954).

With commendable candor, counsel for the respective parties concede they have been unable to find any Kansas decisions wherein the foregoing decisive question has been either considered or determined and our extended research has failed to disclose any. However, it may be stated, this court has frequently dealt with the subject of the fundamential purpose and objective of the Habitual Criminal Act.

In the early case of State v. Woodman, 127 Kan. 166, 272 P. 132, where the validity of the act, as it existed in 1928, was first challenged, the court made the following statement:

'* * * Formerly the imposition of the sentence was left to the discretion of the trial judge within limitations, and it was common for old offenders and hardened criminals to receive severe sentences, while first offenders, convicted of the same crime, were leniently dealt with. And it is a salutary provision of law that criminals whom the law's discipline has hitherto failed to reform by prior conviction and punishment should form a class to be more severely punished than first offenders. * * *' (p. 171, 272 P. p. 134.) (Emphasis supplied.)

Later, and with respect to the same subject, Justice Jochems, concurring specially, in the case of State v. Close, 130 Kan. 497, 287 P. 599, had this to say:

'Our Legislature evidently had the above act [referring to a somewhat similar law of the State of New York, commonly referred to as the 'Baumes' law] before it. While it saw fit to change the language and to...

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  • Gargliano v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1993
    ...must be "convicted a second or subsequent time," see, e.g., Mays v. State, 262 Ga. 90, 414 S.E.2d 481, 482 (1992); State v. Felton, 194 Kan. 501, 399 P.2d 817, 820-22 (1965); People v. Stewart, 441 Mich. 89, 490 N.W.2d 327, 328-30 (1992); State v. Ellis, 214 Neb. 172, 333 N.W.2d at 392-94; ......
  • State v. Wilson
    • United States
    • Kansas Court of Appeals
    • May 8, 1981
    ...1980 Supp. 21-4504. 217 Kan. at 593, 538 P.2d 678. The Supreme Court found support in State v. Murray, 200 Kan. 526; State v. Felton, 194 Kan. 501, 399 P.2d 817 (1965); State v. Ricks, 173 Kan. 660, 250 P.2d 773 (1952); State v. Close, 130 Kan. 497, 287 P.2d 599 (1930); and State v. Woodman......
  • State v. Greever
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    • Kansas Court of Appeals
    • August 5, 1994
    ...criminally inclined from repeated felonies.' " State v. Murray, 200 Kan. 526, 530-31, 437 P.2d 816 (1968) (quoting State v. Felton, 194 Kan. 501, 504, 399 P.2d 817 [1965]. With the subsequent amendments, the legislature saw fit to separate the types of crimes and their enhancements. Because......
  • Carmichael v. State
    • United States
    • Kansas Supreme Court
    • April 15, 1994
    ...The matter is remanded to the district court for correction of the illegal sentence." 254 Kan. at 939, 869 P.2d 729. In State v. Felton, 194 Kan. 501, 399 P.2d 817 (1965), the defendant filed a 60-1507 motion to vacate, set aside, or correct his sentence. Felton was sentenced under the Habi......
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