State v. Lee Lim

• Decision Date: 04 February 1932
• Docket Number: 5041
• Citation: 7 P.2d 825,79 Utah 68
• Court: Utah Supreme Court
• Parties: STATE v. LEE LIM

7 P.2d 825

79 Utah 68

STATE v. LEE LIM

No. 5041

Supreme Court of Utah

February 4, 1932

Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.

Lee Lim was convicted of murder in the second degree, and he appeals.

AFFIRMED.

King &amp King, of Salt Lake City, for appellant.

Geo. P Parker, Atty. Gen., for the State.

FOLLAND, J. CHERRY, C. J., and EPHRAIM HANSON, J., concur. STRAUP, J., ELIAS HANSEN, J., dissenting.

OPINION

FOLLAND, J.

The defendant, on October 13, 1926, in the district court of Salt Lake county, entered a plea of guilty to the charge of murder in the second degree, and was sentenced by the court to an indeterminate term of imprisonment in the Utah State Prison of between ten years and life. Pursuant to this sentence, defendant was delivered to the warden of the state prison and remained imprisoned until released on habeas corpus proceedings in January, 1930. Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 325. In that case this court held the indeterminate sentence void for indefiniteness because not authorized by statute, Comp. Laws Utah 1917, § 8026, providing for a definite term of imprisonment of not less than ten years and which may be for life, and therefore furnished no authority for defendant's incarceration in the state prison. He was thereupon released from custody, but was immediately thereafter apprehended on warrant of arrest issued out of the district court of Salt Lake county and brought before that court for sentence on February 15, 1930. The defendant objected to the jurisdiction of the district court, and, without waiving such objection, undertook took to withdraw his plea of guilty and enter a plea of not guilty. The court denied defendant's right to withdraw his plea and substitute another. After the required formalities, a sentence of imprisonment at hard labor in the state prison for a term of ten years to begin October 13, 1926, was duly pronounced. From this sentence defendant appeals and assigns error as follows:

"1. That the District Court had lost jurisdiction upon appellant to pass sentence upon him on February 15, 1930.

"2. That the court erred in refusing to allow appellant to withdraw his plea of guilty and enter a plea of not guilty, in accordance with section 8900, Compiled Laws Utah 1917."

The following reasons are urged why the district court was without jurisdiction to pronounce a corrected sentence: The sentence was pronounced after the term at which conviction was had, and not within the time for sentence fixed by statute, Comp. Laws Utah 1917, § 9041, "which must be at least two days and not more than ten days after verdict"; it was not imposed within a reasonable time after conviction; defendant was placed in double jeopardy for the same offense; and defendant had entered upon and served part of the void sentence.

One or more of these points were raised and decided contrary to the appellant in each of the cases hereafter cited and discussed, and all of these points are covered by one or more of such cases.

In the case of Lee Lim v. Davis, supra, a majority of the court held, and this was the decision in the case, that the court would not on habeas corpus determine the question of the jurisdiction of the district court to then pass sentence upon the defendant. The court was unanimous in the view that the first sentence was void. In the prevailing opinion it was said:

"The judgment on conviction based on petitioner's plea of guilty being valid, should be enforced and is enforceable by the pronouncement of a proper sentence, unless the court has lost jurisdiction of the cause by lapse of time to now render a valid judgment."

The case being here on appeal, the district court was directed to make an order releasing the prisoner, but "without prejudice to the rights of the state to take any lawful measure to reassume jurisdiction of the petitioner in order that further proceedings may be had against him according to law."

It is now argued by appellant that, because of the use of this language, and particularly the word "reassume," the decision "could only mean one thing, that is, that the district court had lost jurisdiction because if that court has not lost jurisdiction it would not be necessary for it to 'reassume' jurisdiction." To properly comprehend the meaning of that decision, it is necessary to read more than one sentence or paragraph. From the context, it is clear that no such implication can arise from the language used. The general rule stated in 29 C. J. 175, was quoted with approval in Lee Lim v. Davis, supra, as follows:

"Where the conviction is valid, but the judgment and sentence is unauthorized, the prisoner will be remanded to the custody of the proper officer in order that further proceedings may be had according to law, or the discharge may be delayed for a reasonable time to permit of further proceedings."

That we did not follow this rule and remand the prisoner to the trial court for sentence can have no effect on the validity of the sentence thereafter imposed. This court did not decide that the trial court was without jurisdiction, but carefully refrained from passing on that question. If the trial court had jurisdiction, we did not deprive it of its power by failure to remand the prisoner for its action.

We are of the view that the district court had jurisdiction of the case and of the defendant, notwithstanding the lapse of approximately three years and four months, and that the sentence pronounced by it on February 15, 1930, was in all respects lawful and valid. The first sentence being void, the jurisdiction of the district court continued over the case and the prisoner until a valid sentence was imposed. The trial court in pronouncing its corrected sentence took into consideration the time already served by defendant, and fixed the commencement of such term as October 13, 1926, the day the void sentence was pronounced. Whether it was proper for the court to do this need not now be considered, since the defendant is not complaining of this part of the sentence, and, indeed, it is as favorable to him as he could hope for. Neither has the state complained of this feature of the sentence.

The defendant himself was the actor in setting in motion the proceedings by which his sentence was declared void. Had the attack upon the sentence been direct by appeal instead of collateral by writ of habeas corpus there could be no question of the jurisdiction of the district court to impose a proper sentence after the first was declared illegal or void. State v. Carman, 44 Utah 353, 140 P. 670; Murphy v. Commonwealth of Massachusetts, 172 Mass. 264, 52 N.E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266; Id., 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, affirming Com. v. Murphy, 174 Mass. 369, 54 N.E. 860, 48 L. R. A. 393, 75 Am. St. Rep. 353; 44 A. L. R. 1212.

The defect in the first sentence did not inhere in the judgment of conviction. The defendant pleaded guilty, and made no attack on any of the proceedings except the sentence. Had he appealed from the illegal sentence, as he had a right to do, notwithstanding his plea of guilty, this court would have set aside the sentence as void and have remanded the case to the trial court for a valid sentence. State v. Carmen, supra. There is no principle on which it can be successfully maintained that, by serving part of a void sentence instead of appealing from it, but later attacking it in collateral proceedings, the defendant can obtain immunity from being sentenced to the judgment provided by law. State v. Pitcher, 164 La. 1051, 115 So. 187.

The contention that the sentence of October 26, 1925, is void for the purpose of holding the defendant in the custody of the warden of the state prison, but is valid as a dischargement of conviction. The defendant pleaded guilty, and made from the conviction under his plea of guilty, and is effective to the end the prosecution against him, is "illogical in the last degree." Ex parte Smith, 152 Cal. 566, 93 P. 191. A void judgment does not operate to divest a court of jurisdiction of the cause in which it is rendered. It is a mere nullity, and is ineffective for any purpose.

"A judgment which is void, as distinguished from one which is merely voidable, or liable to be vacated or set aside for irregularity or other cause, or reversed for error, is a mere nullity; it is not binding on anyone; it raises no lien or estoppel; it does not impair or affect the rights of anyone, unless by the agreement of the parties concerned; it confers no rights upon the party in whose favor it is given, and affords no protection to persons acting under it; it does not even operate as a discontinuance of the action. Such a judgment may be vacated or set aside, even on motion of the party in whose favor it is given, if it is not such a judgment as he sought; but it is not necessary to take any steps to vacate or avoid it until an effort is made to enforce it. A valid judgment may be entered subsequently in disregard of the void judgment." 34 C. J. 509.

Among the cases cited in support of this text is State v Bates, 22 Utah 65, 61 P. 905, 83 Am. St. Rep. 768 There the defendant was charged, convicted and sentenced for murder in the second degree. The offense was committed shortly before Utah became a state and the trial conducted after statehood before a jury of eight persons, as provided by the state Constitution. On appeal to the state Supreme Court, the judgment was affirmed. 14 Utah 293, 47 P. 78, 43 L. R. A. 33. In the meantime, another case, State v. Thompson, 15 Utah 488, 50 P. 409, involving the legality of a trial before eight jurors for felony committed before statehood was appealed to the Supreme Court of the United States, and it...