State v. Garnetto, 8981.
| Decision Date | 04 February 1949 |
| Docket Number | No. 8981.,8981. |
| Citation | 63 A.2d 777 |
| Parties | STATE v. GARNETTO |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.
Proceeding by the State against Joseph Garnetto, wherein the defendant was sentenced to imprisonment for violation of a deferred sentence by reason of alleged commission of a felony. Defendant's motion to be released from such imprisonment was denied, and he brings exception.
Exception overruled and case remitted.
John H. Nolan, Atty. Gen., and Archie Smith, Asst. Atty. Gen., for the state.
Sidney L. Rabinowitz, of Providence, for defendant.
The defendant in this proceeding was duly sentenced by a justice of the superior court to imprisonment in the state prison. Thereafter he filed a motion in that court asking to be released from such imprisonment. The motion was denied by a justice thereof and the case is before us on defendant's single exception to that ruling.
The record before us reveals the following undisputed facts. On September 8, 1942 the defendant, who was then being held for the action of the grand jury upon a complaint and warrant charging him with assault with a dangerous weapon, appeared before the superior court on his own petition, filed under General Laws 1938, chapter 625, § 73, as amended, and by leave of the court waived indictment. He was thereupon arraigned on the above charge, pleaded nolo contendere, sentence was deferred by the court, and he was released from custody after giving his personal recognizance. It is provided by § 73 that if a defendant has so pleaded ‘all proceedings shall be taken and had in the same manner as would have been the case had such pleas been entered to an indictment regularly found and filed.’ When the defendant was before the superior court he also signed an agreement which was in the following terms: ‘It is hereby agreed that sentence may be deferred on the above entitled indictment,-upon payment of all costs, during the good behavior of the defendant, and so long as the Attorney General is satisfied that the defendant has broken none of the criminal laws of this State, since the date of this agreement.’
On September 28, 1946 the defendant was arrested on a complaint and warrant charging him with rape. He was arraigned before a district court on such charge and was bound over to await the action of the grand jury. On October 17, 1946 on motion of the state he was brought before the superior court on a capias issued October 16, 1946. That court was informed by an assistant attorney general that by reason of defendant's conduct in connection with the charge of rape he had violated the terms of the deferred sentence previously given him on the charge of assault with a dangerous weapon, and the court thereupon sentenced him on the last-named charge to six years in state prison where he is now confined. When the charge of rape was presented to the grand jury it failed to return a true bill against him.
Public laws 1948, chapter 2085, became effective April 30, 1948, on its approval by the governor. The first section of that act reads as follows: ‘Whenever any person shall have been sentenced to imprisonment for violation of a deferred sentence by reason of the alleged commission of a felony, and the grand jury shall have failed to return any indictment on the charge which was specifically alleged to have constituted the violation of said deferred sentence, the sentence to imprisonment for the alleged violation of the deferred sentence shall, on motion made to the court on behalf of the person so sentenced, be quashed and imprisonment thereunder shall be terminated forthwith and the deferred sentence shall have same force and effect as if no sentence to imprisonment had been imposed thereunder.’
Relying on the above-quoted section of said act the defendant on May 3, 1948 filed a motion in the superior court that his sentence to imprisonment for six years in said prison be quashed and that he be freed therefrom. The correctness of the ruling of the justice of the superior court in denying such motion is the issue raised by the defendant's exception. At the hearing on defendant's motion in the superior court the state contended, and renews its contention before us, that the above act is unconstitutional in that it is repugnant to and in violation of art. III, art. VII, secs. 4, 12, and art. X, section 1, of the constitution of this state, and also art. II of the amendments thereto. On the other hand the defendant argues, first, that the constitutional question is not before this court because it was not properly raised on the record in this proceeding; and, second, that in any event the act is valid and constitutional and that he comes within its terms.
Article III of the constitution of this state reads as follows: ‘The powers of the government shall be distributed into three departments: the legislative, executive and judicial.’ Article X, section 1, of such constitution provides: ‘The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.’ We do not deem it necessary to quote the other constitutional provisions referred to which in general relate to the pardoning power of the governor and to certain powers and duties of the attorney general.
Upon consideration we are of the opinion that the defendant takes nothing by his contention that the constitutional question is not properly raised and is not before us for decision. The case was in the superior court on his motion that the sentence of imprisonment be quashed and that he be released. As the basis for that motion he relied on the provisions of section 1, chap. 2085, P.L.1948, supra. While the state, in contesting the motion, might have raised the question of the constitutionality of the statute by some formal pleading on the record, none is required by law and it has ordinarily been the practice merely to appear in court at the time such a motion is in order for hearing and interpose orally whatever objection or defense is to be made. That was done in this instance by the state which then raised the question of unconstitutionality of the statute and specified the portions of the state constitution involved. The transcript shows that defendant made no objection to the form of presentation and that the point was fully argued in the superior court on portions of two court days and was then held for decision. The justice later filed a rescript deciding that the statute was unconstitutional and gave the reasons for his decision. In all the circumstances we find that the question of the unconstitutionality of the act was sufficiently raised on the record.
In support of its contention that chap. 2085 is unconstitutional and void the state argues that it amounts to an exercise of judicial power prohibited to the general assembly by art. III and art. X, section 1, of the constitution of this state. It has unquestionably been the established law here for many years that the general assembly cannot under our constitution rightfully excrcise judicial power. That power is conferred only upon the courts and is necessarily prohibited to the general assembly. Opinion of the Justices, 3 R.I. 299; Taylor & Co. v. Place, 4 R.I. 324. The subject is carefully and exhaustively discussed in those opinions and it is not necessary at this time to refer to them in detail. The defendant, as we understand it, does not question that principle of law. He does, however, urge that chap. 2085 is not an exercise of judicial power by the legislative branch of the state government and that therefore the above well-recognized principle has no application in the present instance.
The defendant cites several cases, among them the following, as confirming the position taken by him that the superior court erred in ruling that the statute in question is unconstitutional and void as an exercise of judicial power. Opinion of the Justices, supra; In the Matter of Nichols, 8 R.I. 50; State v. Dexter, 10 R.I. 341; Ex parte Penniman, Petitioner, 11 R.I. 333. We have examined these authorities and are of the opinion...
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