State v. Fletcher

• Decision Date: 02 March 1972
• Citation: 288 A.2d 92
• Parties: STATE of Maine v. Larry D. FLETCHER.
• Court: Maine Supreme Court

Page 92

288 A.2d 92

STATE of Maine v. Larry D. FLETCHER.

Supreme Judicial Court of Maine.

March 2, 1972.

Joseph E. Brennan, County Atty., Portland, for plaintiff.

Caroline Glassman, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK, and ARCHIBALD, JJ.

WEATHERBEE, Justice.

After he had been convicted following jury trial of the offense of breaking, entering and larceny in the nighttime and while he was serving the State Prison sentence imposed upon him, the Defendant filed a petition for the writ of statutory post-conviction habeas corpus. 14 M.R.S.A. §§ 5502-5508. Following hearing, a Justice in the Superior Court found that Defendant was entitled to a belated appeal from the judgment and conviction as a result of the trial court's non-compliance with M.R.Crim.P., Rule 37(c) ¹ and ordered that the judgment be set aside and that the case be remanded to the Superior Court for re-sentencing. When Defendant came before the Justice of the Superior Court for re-sentencing, he moved that judgment be arrested for the reason that he had at that time received an absolute discharge from the prison sentence in question. Over the objections of Defendant's court appointed counsel, the Defendant was re-sentenced and he appealed.

This is the appeal from the new judgment and conviction and from the denial by the Justice of Defendant's Motion in Arrest of Judgment. We sustain the appeal.

A brief chronology of events shows that:

1) On September 12, 1969 Defendant was sentenced to serve a term of not less than 1 1/2 years and not more than 3 years in prison and he commenced to serve this sentence.

2) Sometime (not disclose by the record) after that, and while serving his State Prison sentence, Defendant filed a petition for the writ of statutory post-conviction habeas corpus and the matter was heard by a Justice in the Superior Court.

3) On January 5, 1971 that Justice's decree setting aside the judgment and remanding for resentencing was filed.

4) On January 12, 1971 the Court received word from the Prison that Defendant had been paroled on January 4, 1971.

5) On April 30, 1971 Defendant was before the Court and counsel was appointed for him. A new warrant of judgment and conviction issued and Defendant moved for arrest of judgment. His motion was denied. At this point, the Court was for the first time informed by the Defendant that he had, in fact, received on January 4, 1971 an absolute discharge from the sentence-although it was not until a month later that a certificate was filed in proof of this. On April 30 he was again sentenced to imprisonment in the State Prison for a term of not less than 1 1/2 and not more than 3 years. However, the judgment recited that the Defendant was to be credited with all the time he had served in the prison on the sentence which was originally imposed.

6) Defendant appealed.

The decree of the Single Justice setting aside the first judgment and remanding for resentence was for the sole purpose of making it possible for Defendant to file a belated appeal from the judgment and conviction as a result of the Court's failure to comply with Rule 37(c). The Justice on habeas corpus found no defect in the judgment or sentencing procedure in themselves and apparently ordered resentencing only as a convenient method of establishing a starting point for the running of the times for perfecting the appeal. He was following the practice approved by some of the United States Circuit Courts of Appeal. Since that time, in Boyd v. State, Me., 282 A.2d 169 (1971), this Court has had the opportunity to address itself to the procedure to be followed when, on habeas corpus, the Justice finds that a Defendant has been deprived of the opportunity to appeal through constitutional deficiency or non-compliance with the Rule. We found in Boyd, in effect, that non-compliance with Rule 37(c) does not invalidate the judgment or sentence and that neither logic nor policy requires a re-sentencing. There, we ordered the Clerk to file for that Petitioner the notice of the appeal which had been denied him.

The effect of the decree which the Single Justice made on Petitioner's habeas corpus petition was only to allow Defendant a late appeal. An appeal from a judgment of conviction in the Superior Court suspends the operation of the judgment and stays the execution of the sentence (if the Defendant so elects or if he is admitted to bail, as this Defendant was). 15 M.R.S.A. § 1701; M.R.Crim.P., Rule 38(a) (1). The ultimate denial of an appeal restores the judgment to effectiveness and the sentence regains its operative force. No new sentence is necessary or effective except in the event the first sentence is invalidated by the Court.

The re-sentencing of this Defendant was unnecessary and a nullity-a potentially effective sentence had already been imposed upon him. The new 'sentence' had no legal effect and in no way deprived the Court of jurisdiction over the Defendant. It is elementary that a Defendant's appeal does not deprive that State of jurisdiction to try him again if, on appeal, his conviction is set aside (State v. White, Me., 285 A.2d 832 (1972)) and to impose (within the limitations of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)) a new sentence if a Defendant's new trial results in a new conviction.

On January 4, 1971, the day before the Single Justice's decree, the Defendant received an absolute discharge from the original sentence and the Court would then have lost jurisdiction over Defendant if it were not for Defendant's pending petition in habeas corpus. Although Defendant had fully completed his sentence he was entitled under his already pending petition for the writ of statutory post-conviction habeas corpus to seek an appeal for the purpose of removing the conviction from his record. Carafas v. LaVallee,391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Staples v. State, Me.,274 A.2d 715 (1971). On habeas corpus, Defendant sought-and was granted-an appeal from the judgment of conviction. On appeal he now urges that he never was validly convicted or sentenced and in doing so he gives the Court jurisdiction to determine these issues.

Because the uncertainty as to times for perfecting late-granted appeals which existed until Boyd, we treat this Defendant's appeal as timely perfected.

Defendant's appeal attacks his conviction on several grounds. We need consider here only one of the issues raised by Defendant.

Testimony at trial revealed that on March 17, 1969 at about 10:15 P.M. a Mrs. Mullen who lived directly across the street from the Woodfords Club in Portland looked out of her window and saw a tan automobile of about 1964 vintage stop in front of her house. As she watched, a strange man wearing a sports jacket got out from the passenger side and went across the street to the Club. About five to ten minutes later he returned to the car carrying a very heavy box of some kind. Another person in the car opened the rear car door so that he could put the object in the back seat and then the car drove away very rapidly toward Woodfords Corner. Mrs. Mullen wrote down the registration number of the car on a slip of paper.

Within another ten or fifteen minutes Police Officer Morrison, on a routine check, noticed that the glass in the Club front door had been broken out. The Club steward was called and it was discovered that a forcible entrance had been made since the steward left the Club secure shortly after 10:00 P.M. and that the cash register containing a dollar bill and 25 cents in change had been stolen along with several cartons of cigarettes.

Officer Morrison at once notified the police station of the break. Other officers soon arrived at the scene and, unknown to Officer Morrison, Mrs. Mullen gave one of the officers the slip of paper containing the registration number of the car in which the thief had escaped.

The record does not reveal who that officer was, what he did with the slip of paper, what use he may have made of the number or what the number was. At trial, Mrs. Mullen could not remember the number.

About 11:00 P.M. a police officer found the cash register on Revere Street in the Woodfords section.

At about 11:30 P.M. Detective Coppersmith was sent by the Dispatcher to go to Plum Street in Portland, just east of Monument Square, to observe a particular automobile, the registration number of which the Dispatcher gave him. He found the car bearing that number, a tan Pontiac, parked at the curb. Its hood was quite warm and as the officer walked past he could see through the window that on the back seat there were some slivers of wood, two small keys and some playing cards. A half hour later, the Defendant and two other persons appeared and got in the front seat of the car, with the Defendant behind the wheel, and started to move away. The officer stopped the car when it reached Fore Street and told Defendant he was under arrest for breaking, entering and larceny in the Woodfords Club. ²

The car was then blocking traffic on Fore Street and it was hauled by a wrecker to the police garage accompanied by Officer Piedlock who was with Detective Coppersmith when Defendant was arrested. Piedlock, who is an Evidence Technician, searched the car at the police garage and found on the floor of the back seat a tire iron, a tire changing tool, fragments of wood which were of the same type of wood as some other slivers which the witness later saw by the cash register, three keys, one of which fitted the door on the side of the cash register, a letter from a keyboard which fitted a missing letter on the keyboard of the cash register, some pennies that were strewn on the back floor area and two playing cards which had the same design as those he later saw on the floor near the counter at the Woodfords Club. A flashlight and a pair of men's gloves were found on the front seat.

At trial, all of these exhibits were...