State v. King
| Decision Date | 05 August 1943 |
| Docket Number | 29025. |
| Citation | 18 Wn.2d 747,140 P.2d 283 |
| Parties | STATE v. KING. |
| Court | Washington Supreme Court |
Department 1.
Jerry King was convicted or grand larceny and of being an habitual criminal, and, from a judgment sentencing him to life imprisonment, he appeals.
Affirmed.
Appeal from Superior Court, Yakima County; Robert J. Willis, judge.
Chalmer G. Walters, of Yakima, for appellant.
Lloyd L. Wiehl and Ian R. MacIver, both of Yakima, for respondent.
This is an appeal from a judgment sentencing the defendant to life imprisonment upon conviction of the crime of grand larceny and subsequent adjudication of his status as being that of an habitual criminal.
The facts are these: On November 19, 1926, in cause number 2962 of the superior court for Yakima county, appellant, Jerry King, was charged by information with the crime of grand larceny. On the following day he entered a plea of guilt upon the accusation, and immediately thereafter the court entered a judgment finding and decreeing him to be guilty of the offense charged, but imposing no sentence upon him therefor.
On December 16, 1926, an information was filed in the same county, in cause number 2975, charging appellant with being an habitual criminal. About a week later, appellant pleaded guilty to that charge, and on the same day the court entered judgment in cause number 2975 determining his status us to be that of an habitual criminal and sentencing him to life imprisonment in the state penitentiary.
On April 20, 1942, appellant, while serving his sentence in the penitentiary, petitioned this court for a writ of habeas corpus to obtain his release from custody, on the ground that his sentence in cause number 2975 was illegal and void. After a hearing on that matter, this court entered an order directing the superior court for Yakima county to determine whether or not appellant had ever been sentenced for the crime of grand larceny, in cause number 2962, and, if the court should find from its records that appellant had not been so sentenced and if there were no legal obstacle or defect in the record preventing further action by the court then to sentence appellant for that crime in that cause taken in connection with the finding in cause number 2975 as to appellant's status of being an habitual criminal.
Pursuant to that order, appellant was brought Before the superior court for Yakima county on February 4, 1943, at which time in cause number 2962, the court found that, although appellant had therein been convicted of the crime of grand larceny, he had never been sentenced therefor, but had been sentenced to life imprisonment, in cause number 2975, on the charge of being an habitual criminal, which sentence was void. The court thereupon entered judgment in the original cause, number 2962, reciting the findings as just stated, and imposing upon appellant a sentence of life imprisonment by reason of his conviction of the substantive offense of grand larceny followed by the adjudication of his status as being that of an habitual criminal.
The question now presented for our decision is this: Where a judgment of conviction for the crime of grand larceny has been entered against a defendant, but the judgment imposes no sentence for that crime, and the defendant is thereafter charged with being an habitual criminal under the provisions of Rem.Rev.Stat. § 2286 [P.C. § 8721], and judgment upon the latter charge is entered sentencing the defendant to life imprisonment, and that sentence is thereafter found to be illegal and void, may the trial court then impose upon the defendant a sentence of life imprisonment upon the original conviction for grand larceny taking into consideration the fact that pursuant to, and consequent upon, that conviction the defendant has been adjudged to be an habitual criminal?
While this precise question has never been decided by this court, there are many of our decisions which not only bear closely upon it but also very clearly indicate the circumstances under which a defendant may be sentenced or resentenced, as distinguished from the conditions under which no second, or even first, sentence may be imposed upon him. See, State ex rel. Edelstein v. Huneke, 138 Wash. 495, 244 P. 721; Blake v. Mahoney, 9 Wash.2d 110, 113 P.2d 1028; Ex parte Lombardi, 13 Wash.2d 1, 123 P.2d 764; Ex parte Cress, 13 Wash.2d 7, 123 P.2d 767, affirmed in State v. Cress, Wash., 131 P.2d 955; State v. Dooly, 14 Wash.2d 459, 128 P.2d 486; Ex parte Towne, 14 Wash.2d 633, 129 P.2d 230.
Those decisions recognize and suggest as the proper procedure in this general type of case the following method: Where a defendant has been convicted of a crime, consequent upon which an habitual criminal proceeding is instituted against him, sentence upon the substantive offense upon which he has been convicted shall await the outcome of the habitual criminal proceeding, and if the latter be substantiated, then, and not until then, shall sentence be imposed upon the defendant for the commission of the substantive crime, with an increased penalty exacted because of the adjudication of defendant's habitual criminal status.
The cases then hold (1) that if, contrary to the prescribed procedure, sentence is imposed for the substantive offense while the habitual criminal proceeding is still pending and undetermined, the judgment imposing such sentence is premature and beyond the power of the court to enter; and, further, (2) that if the sentence is imposed solely upon the habitual criminal charge, such sentence also is void, and the defendant shall then be sentenced, as for the first time, upon the latest, substantive offense, taken in connection with the habitual criminal adjudication; but (3) that if formal sentence be once imposed upon the defendant for the substantive offense prior to the institution of the habitual criminal proceeding, such sentence is final and even though the defendant is subsequently adjudged to be an habitual criminal he cannot thereafter be again sentenced for the original substantive crime taken in connection with the subsequent adjudication of his habitual criminal status.
The first branch of the rule as thus pronounced is exemplified in the Edelstein case, supra; the second branch is illustrated by the Cress case, supra; and the third branch was invoked to produce the result in the Lombardi case, supra. The Blake and Towne cases, supra, came within both the first...
To continue reading
Request your trial
-
State v. LeFever
...are: State v. Gilcrist, 91 Wash.2d 603, 590 P.2d 809 (1979); State v. Tatum, 61 Wash.2d 576, 379 P.2d 372 (1963); State v. King, 18 Wash.2d 747, 140 P.2d 283 (1943); In re Towne, 14 Wash.2d 633, 129 P.2d 230 (1942); State v. Johnson, 194 Wash. 438, 78 P.2d 561 (1938); State v. Le Pitre, 54 ......
-
State v. Braithwaite
...is used to enhance the penalty for the underlying crime at the time sentence is pronounced and the judgment entered. State v. King, 18 Wash.2d 747, 750, 140 P.2d 283 (1943); State v. Keith, 86 Wash.2d 358, 361, 544 P.2d 747 In connection with the habitual criminal proceeding, the defendant ......
-
Davidson v. Nygaard
...is considered null and void'. 24 C.J.S., Criminal Law, Sec. 1971, p. 1173. Ex parte Wray, 61 Okl.Cr. 162, 66 P.2d 965; State v. King, 18 Wash.2d 747, 140 P.2d 283; State v. Hensley, 20 Wash.2d 95, 145 P.2d 1014; State v. Miller, 239 Wis. 334, 1 N.W.2d 178; Ex parte Kuwitzky, 135 Neb. 466, 2......
-
St. Peter v. Colville Confederated Tribes, (1993)
...the same as under Washington and Federal decisional law. The Washington courts have defined "sentence" in State v. King, 18 Wash.2d 747, 140 P.2d 283 (1943). In that case Washington Supreme stated as follows: "In its technical legal signification "sentence" is ordinarily synonymous with "ju......