State v. Jones
| Decision Date | 29 June 1951 |
| Docket Number | No. 35415,35415 |
| Parties | STATE v. JONES. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. It is within the discretion of the trial court under M.S.A. 630.29 to permit a defendant in a criminal case, at any time before judgment, to withdraw a plea of guilty and substitute therefor a plea of not guilty.
2. Under the record here, Held that defendant's motion, made before judgment or sentence, to withdraw his plea of guilty and enter a plea of not guilty should have been granted.
Johanson, Winter, & Lundquist, Wheaton, Bryngelson, Pratt & Bradley, and Markve & Aune-Markve, all of Minneapolis, for appellant.
J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., I. L. Swanson, County Atty. Elbow Lake, for respondent.
Appeal from a judgment of conviction and sentence of the district court.
On January 5, 1950, a complaint was filed with the justice of the peace of Elbow Lake, Minnesota, charging defendant with the crime of sodomy. He was arrested at Fargo, North Dakota, on the same day and lodged in jail at that place. The next day, defendant waived extradition and was returned to Elbow Lake, where he waived preliminary hearing and signed an application to plead guilty to the charges preferred. On that same day, he appeared with his attorney and other interested parties before the judge of the district court at Morris, Minnesota, at which time defendant's request to plead guilty was postponed. On January 21, 1950, with several attorneys and other interested parties, defendant again appeared before the same district judge at Morris, at which time a motion on his part to withdraw his application to plead guilty was granted, and defendant was admitted to bail.
On June 7, 1950, represented by three firms of attorneys, defendant again appeared before the district court of Grant county, was arraigned, and pleaded guilty to an information dated June 5, 1950, charging him with the crime of sodomy by carnally knowing a 15-year-old boy. At that time, he was questioned by the court as to his age, family, schooling, service record, previous crime record, if any, and the crime charged. Defendant then requested a presentence investigation, which was granted, and he was released upon his previous bail. After some adjournments, the matter again came before the court at Glenwood on July 13, 1950, at which time another attorney appeared on behalf of defendant in addition to the firms already noted. Witnesses on behalf of defendant were heard from 9:30 a.m. until 4:30 p.m. that day, after which an adjournment was taken until ten o'clock July 26, 1950. Shortly before the time set for the adjourned hearing that morning, defendant caused to be served upon the county attorney at Elbow Lake moving papers asking permission to withdraw his plea of guilty and to substitute a plea of not guilty. Defendant presented this motion at the opening of court that morning. Court adjourned later that day until August 3, 1950, in order to permit the state to prepare counteraffidavits in opposition to the motion. When court reconvened on the morning of August 3, it adjourned until that afternoon in order to permit defendant to prepare additional affidavits. After hearing arguments on the motion, the court denied it. The court then granted defendant permission to proceed further with presenting pre-sentence testimony, but was advised by defendant's counsel that they did not wish to proceed further. The court then pronounced sentence of confinement at the St. Cloud reformatory for a period of not to exceed ten years. According to the state's brief, defendant was released upon his furnishing $10,000 bail, the amount set by the court.
The only legal questions and assignments of error we need consider are:
(1) Did the court err in denying defendant's motion for an order permitting him to withdraw his plea of guilty and substitute a plea of not guilty on the ground that the word 'may' in M.S.A. § 630.29 means 'must'?
(2) If the court had discretion in permitting defendant to withdraw his plea of guilty and substitute a plea of not guilty during the pendency of proceedings before judgment, was there an abuse of discretion in denying defendant's motion?
1. M.S.A. § 630.29, relating to a plea of guilty and withdrawal thereof, provides:
It is defendant's contention that under the language of the above statute the trial court has no discretion in the matter when a motion is made by defendant before judgment to withdraw a plea of guilty and substitute a plea of not guilty. It is his position that the word 'may' as used in the statute means 'shall' or 'must'; therefore, that it was mandatory on the court to grant the motion.
We cannot agree with this contention. The word 'may' may be construed to mean 'shall' or 'must,' but only when the interests of the public or third persons require it. The use of the words 'may' and 'shall' is not decisive of whether a statutory provision is directory or mandatory. The word 'must' does not necessitate a mandatory construction. 6 Dunnell, Dig. & Supp. § 8979, and cases cited. The words 'may' and 'must' are used interchangeably. To determine the import thereof, consideration should be given to the subject matter, the language of the statute, the importance of the provisions, the object intended to be achieved, and the legislative intent. Cashman v. Hedberg, 215 Minn. 463, 472, 10 N.W.2d 338, 393. One who has already entered a plea to a criminal complaint does not have the absolute right to withdraw it. No reversible error can be predicated upon the refusal of the court to permit the defendant to withdraw his plea for the purpose of having a futile dismissal where it appears that he could be immediately arrested upon a warrant issued on the complaint filed. State v. Henspeter, 199 Minn. 359, 271 N.W. 700.
In State v. Arbes, 70 Minn. 462, 73 N.W. 403, this court said that the grant or denial of leave to...
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