State v. Gaston

• Decision Date: 18 January 1974
• Docket Number: No. 38910,38910
• Citation: 214 N.W.2d 376,191 Neb. 121
• Parties: STATE of Nebraska, Appellee, v. Larry Joe GASTON, Appellant.
• Court: Nebraska Supreme Court

Page 376

214 N.W.2d 376

191 Neb. 121

STATE of Nebraska, Appellee, v. Larry Joe GASTON, Appellant.

No. 38910.

Supreme Court of Nebraska.

Jan. 18, 1974.

Syllabus by the Court

On direct appeal this court has the power to remand the cause for a lawful sentence where the one pronounced was erroneous or void as being beyond the power of the trial court to pronounce and where the accused himself invoked appellate jurisdiction for the correction of errors.

Frank B. Morrison, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Deputy Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

This is a direct appeal from a judgment, sentence, and commitment to the Nebraska Penal and Correctional Complex for an indeterminate period of not less than 20 or more than 30 years.

The defendant was found guilty by a jury of forgery, and by the court of being an habitual criminal in a subsequent proceeding. § 29--2221, R.S.Supp., 1972. On November 13, 1972, he appeared for sentencing on these two convictions.

Instead of imposing One sentence on the forgery conviction for the mandatory minimum of 10 to 60 years required by the habitual criminal act (section 29--2221, R.S.Supp., 1972), the District Court imposed a separate sentence of 1 to 2 years on the forgery conviction and another and second sentence of 20 to 30 years on the conviction under the habitual criminal act. This was error. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298; State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428.

On the same day, November 13, 1972, the court committed the defendant to the Nebraska Penal and Correctional Complex by entering a formal written journal entry of judgment and commitment, 'that the defendant * * * be delivered * * * to the Nebraska Penal and Correctional Compex * * * for an indeterminate period of not less than Twenty (20) years and not more than Thirty (30) years * * * on the charge of Foregery and being an habitual criminal * * *.' This would have been a proper sentence but it does not conform to the two sentences actually imposed in open court and is no proper judgment. Preuit v. People, 5 Neb. 377, at 382.

The defendant now contends on direct appeal, citing numerous decisions in support, that the second and separate habitual criminal sentence is illegal and void, and that he only has to serve the 1-to-2 year indeterminate sentence for forgery.

The answer to this contention is that both sentences orally pronounced on the defendant are unauthorized, not according to law, and invalid. By its terms, the habitual criminal act provides for one single sentence on the principal charge and mandatorily requires that single sentence to be for a period of from 10 to 60 years. The sentence for only 1 to 2 years was improperly entered. § 29--2221, R.S.Supp., 1972. Preuit v. People, Supra; Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510; In re Fanton, 55 Neb. 703, 76 N.W. 447. On direct appeal this court has the power to remand a cause for a lawful sentence where the one pronounced was void as being beyond the power of the trial court to pronounce and where the accused himself invoked appellate jurisdiction for the correction of errors. Hickman v. Fenton, Supra; Drawbridge v. State, 115 Neb. 535, 213 N.W. 839; Knothe v. State, 115 Neb. 119, 211 N.W. 619; In re Application of Cole, 103 Neb. 802, 174 N.W. 509, 848. The holdings of these cases apply 'with equal force to a sentence for a shorter period than the minimum prescribed by statute.' Hickman v. Fenton, Supra.

Both original orally pronounced sentences were unauthorized by statute, illegal, and of no force and effect. The two convictions are valid and stand unchallenged. The defendant remains legally without sentence.

Our recent decision in State v. Brewer, 190 Neb. 667, 212 N.W.2d 90, is not contrary to our present holding. In that case there was a valid sentence orally pronounced on the defendant on the principal charge and a subsequent attempt to convict and sentence the defendant on an habitual criminal charge. The case of State v. Solano, 181 Neb. 716, 150 N.W.2d 585, insofar as it is in conflict with this opinion, is overruled.

The judgment of the District Court is reversed and the cause remanded with directions to resentence the defendant in conformity with this opinion.

Reversed and remanded with directions.

SPENCER, Justice (dissenting).

I am unable to see how we can distinguish this case from State v. Brewer, 190 Neb. 667, 212 N.W.2d 90.

The bill of exceptions and the journal entry do not reflect the same facts. The bill of exceptions reflects that on Monday, November 13, 1972, after visiting with the defendants, the court said: 'No, the Court doesn't see anything either in your record or your background, or in your attitude, that would justify anything else other than what the Court intends to sentence you.

'So it will be the judgment of the Court that for the crime of forgery you be sentenced in the Nebraska Penal Complex, in accordance with law, for a period of one to two years, and to pay a dollar fine.

'On the conviction for being an habitual criminal it is the judgment of the Court that you be sentenced in the Nebraska Penal Complex, pursuant to law, for a period of Twenty to thirty years, and to pay the costs of this action.'

The journal entry appearing in the transcript, so far as material herein, is as follows: 'IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court, that the defendant Larry J. Gaston be taken hence to the Douglas County Jail and that thence within thirty (30) days and as early as practicable, he be delivered by the Sheriff of Douglas County to the NEBRASKA PENAL AND CORRECTIONAL COMPLEX, in Lancaster County, Nebraska, for imprisonment at hard labor, for an indeterminate period of not less than Twenty (20) years nor more than Thirty (30) years, from and after this 13th day of November A.D. 1972, on the charge of Forgery...