State v. Mertz, 39218

• Decision Date: 18 September 1964
• Docket Number: No. 39218,39218
• Citation: 130 N.W.2d 631,269 Minn. 312
• Parties: STATE of Minnesota, Respondent, v. Donald N. MERTZ, Appellant.
• Court: Minnesota Supreme Court

Page 631

130 N.W.2d 631

269 Minn. 312

STATE of Minnesota, Respondent, v. Donald N. MERTZ, Appellant.

No. 39218.

Supreme Court of Minnesota.

Sept. 18, 1964.

Syllabus by the Court

1. Ordinarily this court will not review constitutional and jurisdictional questions raised on appeal when the statutory time for taking such appeal has expired. Where, however, points raised could be presented by habeas corpus, we will treat it as a proceeding for post-conviction relief and consider the merits of the case.

2. A valid sentence is not affected by an unauthorized order granting stay of execution and probation made at a term subsequent to the imposition of such sentence.

3. Under Minn.St. 609.135 (L.1963, c. 753, § 609.135) the trial court is given power to grant stays of execution for the purpose of probation at any time before execution of sentence has commenced.

Donald N. Mertz, pro se.

Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, George M. Scott, County Atty., Per M. Larson, First Asst. County Atty., Minneapolis, for respondent.

MURPHY, Justice.

Defendant appeals from a judgment of conviction of the district court and an order of said court denying his motion to vacate the judgment. ¹

On May 8, 1958, a complaint was filed in the municipal court of Minneapolis wherein defendant was charged with committing the crime of grand larceny in the first degree, on May 7, 1958, in the city of Hopkins. On May 9 he appeared before said court and waived preliminary examination. Pursuant thereto the case was certified to the District Court of Hennepin County and on that date an information was filed charging him with grand larceny in the first degree. On May 12 he was arraigned before the district court and plead not guilty. The next day he again appeared in court, withdrew his plea, and entered a plea of guilty as charged. On that day an information was filed charging him with two prior convictions of burglary in the third degree.

On May 20, 1958, defendant appeared before the district court and plead guilty to the two prior convictions. The court adjudged him guilty and sentenced him to be imprisoned in the state reformatory at St. Cloud until discharged by due course of law or by competent authority. Judgment was entered, judgment roll made and filed, and sentence was stayed until defendant completed a sentence previously imposed on him.

About 3 years and 7 months later, on December 11, 1961, defendant again appeared in said district court at which time an order of the court was made again staying execution of the May 20, 1958, sentence and placing defendant on probation for 2 years. The probation order was filed December 18, 1961.

More than a year thereafter on January 4, 1963, probation was revoked, defendant having plead guilty to the crime of forgery in the second degree. Thereafter, on July 9, 1963, defendant moved to vacate the judgment of conviction of May 20, 1958. Three days later an order was filed denying the motion.

In the instant case no appeal or motion for a new trial was made within the 6-month period for appeal provided by Minn.St. 632.01. ²

1. Ordinarily we would not review constitutional and jurisdictional questions raised on appeal when the statutory time for taking such appeal had expired. ³ It is apparent, however, from recent decisions of the United States Supreme Court, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, that the issue raised here could be presented to us by habeas corpus. We accordingly treat the appeal as a proceeding seeking postconviction relief and consider the errors assigned.

2. It is the contention of defendant that the order of the trial court dated December 18, 1961, by which defendant was placed on probation was unauthorized because it amounted to a change or modification of the sentence after expiration of the term at which it was imposed and that the effect of that order was to deprive the court of jurisdiction, entitling defendant to immediate discharge. We cannot agree. When, on May 20, 1958, defendant entered a plea of guilty to the offense of 'Grand Larceny in the First Degree and two prior convictions,' a valid judgment of conviction was entered. At that time defendant was serving a term in the St. Cloud Reformatory under sentence for another conviction. The trial court stayed execution until defendant had completed serving that sentence. It is apparent from the record that the trial court realized that under the sentence imposed defendant was subject to the drastic penalties under the multiple-offense statutes then in effect, Minn.St.1961, §§ 610.28 and 610.29, and intended to reserve the right to suspend that sentence and place him on probation. The stay was properly entered pursuant to the provisions of Minn.St.1961, § 610.33, then in effect, which stated in part:

'* * * when a person while under sentence for felony commits another felony, and is sentenced to another term of imprisonment such latter term shall not begin until the expiration of all prior terms.'

On December 11, 1961, after defendant had completed serving his sentence at the St. Cloud Reformatory, he was returned to the District Court of Hennepin County, at which time a further stay of execution of sentence was entered and defendant was placed on probation for a period of 2 years.

Assuming that the order granting probation was unauthorized, that order could not affect the validity of the sentence imposed May 20, 1958. The sentence would remain in effect and require immediate execution. 5 Wharton, Criminal Law and Procedure, § 2193; 24 C.J.S., Criminal Law, § 1618(11)b. The authorities on this issue are gathered in Annotation, 141 A.L.R. 1225, 1229, where it is said:

'According to the great weight of authority, where sentence has been pronounced in a criminal case, but a void order has been entered suspending the execution of the sentence, the defendant may be required to pay his suspended fine or serve his suspended term in prison notwithstanding the making of the unauthorized order suspending the execution of the sentence. The enforcement of the sentence which has been suspended without authority may take place at any time after the suspension thereof, even after the expiration of the term at which the void order was entered.'

3. Moreover, we cannot agree that the order staying execution and placing defendant on probation was unauthorized. The authorities which hold that a trial court has no power to change or modify a sentence after expiration of the term at which it was imposed do not apply to actions of the court in exercising its probationary powers to stay execution of the sentence. See, Pernatto v. United States (3 Cir.) 107 F.2d 372; Kriebel v. United States (7 Cir.) 10 F.2d 762; United States v. Weiss (E.D.Pa.) 28 F.Supp. 598.

The trial court has broad probationary powers which permit it, at any time before the sentence is executed, to stay the execution of sentence and place defendant on probation (Minn.St. 609.135, superseding Minn.St.1961, §§ 610.37 and 610.38), and in the event of a breach of conditions of probation thereafter to revoke the stay (Minn.St. 609.14, superseding Minn.St.1961, § 610.39). It has been pointed out by Federal authorities, Pernatto v. United States, supra; White v. Steigleder (10 Cir.) 37 F.2d 858; Nix v. James (9 Cir.) 7 F.2d 590; United States v. Edelson (M.D.Pa.) 89 F.Supp. 926; United States v. Weiss, supra, which have considered the probationary powers of the Federal courts under the Probation Act of 1925, 18 U.S.C.A. § 724 et seq., now 18 U.S.C.A. § 3651 et seq., that the probation law is remedial and humanitarian in purpose and that the power to suspend sentence for the purpose of giving defendant a chance to rehabilitate himself continues until execution of the sentence has actually commenced. The former Minnesota provision relating to probation, Minn.St.1961, § 610.37, which was in effect at the time of the granting of the stay here in question, differed slightly from the Federal statute in that it stated that suspension might be ordered 'upon the imposition of sentence' rather than 'after sentence.' It would not seem that this difference should be decisive; but, in any event, the power of trial courts in the future to grant stays of execution for purposes of probation at any time before execution of such sentence has commenced is clear under the current...