State v. Lewis
| Decision Date | 28 November 1978 |
| Citation | 176 Conn. 270,407 A.2d 955 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. John L. LEWIS. |
Michael J. Daly, III, Waterbury, for appellant (defendant).
Francis M. McDonald, Jr., State's Atty., with whom, on the brief, was Bradford J. Ward, Asst. State's Atty., for appellee (state).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
The defendant, John L. Lewis, was charged initially in a one-part information with robbery in the second degree, in violation of General Statutes § 53a-135, to which he pleaded not guilty. On the day scheduled for trying the robbery count, the state, with no advance notice, moved that his prior plea be withdrawn and that he be again put to plea on a substitute two-part information, charging him also with being a persistent felony offender, in violation of § 53a-40(e) of the General Statutes. The defendant objected to this procedure, but his objection was overruled.
Lewis was found guilty of the robbery by a jury and subsequently found guilty of being a persistent felony offender by the court. He was sentenced under the persistent felony offender statute to an indeterminate term, with a maximum allowable penalty of life imprisonment.
The defendant has appealed, claiming error in the court's refusal to quash the second portion of the information charging him as a persistent offender and in not deleting his juvenile record from the presentence report. There is no claim that there was any error in the jury verdict relating to the first part of the information.
The state did not obtain a grand jury indictment even though a conviction under § 53a-40(e) coupled with a conviction for second degree robbery could carry a sentence of life imprisonment. 1 Neither side raised this issue in their briefs but it was brought to the attention of this court during oral argument. Since it is jurisdictional in nature, it is considered first.
The Connecticut constitution, article first, § 8, provides in part that "(n)o person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury." General Statutes § 54-45 states in part that "(n)o person shall be put to plea or held to trial for any crime the punishment of which may be death or imprisonment for life unless an indictment has been found against him for such crime by a grand jury legally impaneled and sworn."
Since the penalty for a conviction of robbery compounded by a conviction under the persistent felony offender statute could have been life imprisonment, and, in fact, was, 2 it was mandatory that Lewis be indicted by a grand jury. State v. Holloway, 144 Conn. 295, 302, 130 A.2d 562 (1957). The failure of the trial court to quash the second count of the information was error and the sentence based upon it must be reversed.
Where one has been charged as a persistent offender, the allegations of prior offenses in the second part of an information or indictment affect only the punishment to be imposed under the first part and must be included in the same information or indictment with a specific substantive criminal charge. State v. Grady, 153 Conn. 26, 32, 211 A.2d 674 (1965); State v. Reilly, 94 Conn. 698, 702, 110 A. 550 (1920). A person cannot be charged as a persistent offender under § 53a-40 in a separate information or indictment. If the allegation of prior offenses is not included in an information or indictment charging a specific crime, it is ineffective. State v. LaSelva, 163 Conn. 229, 233, 303 A.2d 721 (1972); State v. Delmonto, 110 Conn. 298, 147 A. 825 (1929). Consequently, as the first part of the information has been conclusively determined by a jury, the second part of the information must be dismissed.
The proceeding under the first part of the information was distinct, so it is not affected by the dismissal of the second part. Therefore, this case is remanded for resentencing on the first part of the information. A remand for resentencing does not raise the issue of double jeopardy here because a remand does not include a second trial or further fact-finding. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). It is the sentence and not the verdict that was erroneous or inconclusive. State v. Langley, 156 Conn. 598, 601, 602, 244 A.2d 366 (1968), cert. denied,393 U.S. 1069, 89 S.Ct. 726, 21 L.Ed.2d 712; 21 Am.Jur.2d, Criminal Law, §§ 167, 572; cf. Leifert v. Turkington, 115 Conn. 600, 603, 604, 162 A. 842 (1932).
The defendant claims error in the court's refusal to strike the six references in the presentence report to his juvenile difficulties, claiming that they all preceded In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and that the procedures and safeguards of fundamental fairness and due process did not apply to our ...
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...... The only function of the separate . Page 998 . judicial proceeding on the defendant's status as a persistent dangerous felon is to permit an enhanced sentence for conviction of the underlying substantive crime. See General Statutes § 53a-40(e); State v. Lewis, 176 Conn. 270, 272, 407 A.2d 955 (1978); State v. Perkins, supra [169 Conn. at] 264-65 [363 A.2d 141]." (Footnote omitted.) State v. Fullwood, 194 Conn. 573, 587, 484 A.2d 435 (1984). Similarly, the capital felony statute does not define a new offense when it increases the punishment for ......
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