State v. Moses

• Decision Date: 08 December 1962
• Docket Number: No. 42501,42501
• Parties: STATE of Kansas, Appellee, v. Beverly K. MOSES, Appellant.
• Court: Kansas Supreme Court

Page 804

376 P.2d 804

190 Kan. 485

STATE of Kansas, Appellee, v. Beverly K. MOSES, Appellant.

No. 42501.

Supreme Court of Kansas.

Dec. 8, 1962.

Syllabus by the Court

On appeal from an order of the district court correcting an incomplete journal entry in a criminal action the record is examined, in the light of the facts, conditions and circumstances set forth at length in the opinion and the decisions therein cited, and held to disclose no reversible error.

Beverly K. Moses, appellant, pro se.

Harold A. Pfalzgraf, Asst. Atty. Gen., and William M. Ferguson, Atty. Gen., John J. Stang, County Attorney, and Park McGee, Asst. Atty. Gen., were on the briefs for appellee.

PARKER, Chief Justice.

This is an appeal from an order of the district court of Rush County correcting an incomplete journal entry in a criminal action. There can be no dispute regarding the controlling facts which may be briefly stated.

Defendant, Beverly K. Moses, who was represented by competent counsel, appeared before the district court of Rush county on January 13, 1958, accompanied by his attorney, and entered a plea of guilty to an information charging him with the crime of burglary in the second degree, in violation of G.S.1955 Supp. 21-520, now G.S.1961 Supp. 21-520. Subsequently a journal entry of judgment and sentence, approved by counsel for the defendant and the state, was prepared and filed in the office of the clerk of the district court. This journal entry contained a reference to the statute violated, but failed to specifically include the burglary sentencing statute (G.S.1949, 21-523) as required by G.S.1949, 62-1516. However, such journal entry did contain other recitals to the effect defendant was sentenced to the State Penitentiary, for commission of the offense to which he had entered a plea of guilty as charged in the information, for the period of time prescribed by law for the commission of such offense. Defendant did not appeal from the judgment and sentence imposed against him.

The fact the journal entry failed to make specific reference to G.S.1949, 21-523, came to the attention of the County Attorney of Rush County two years after it had been filed of record. Thereupon that official filed a motion for a nunc pro tunc order correcting such instrument by supplying the missing statutory reference and gave notice to the parties, including defendant and his attorney, that such motion would be presented to, and heard by, the district court on January 9, 1961. On the date indicated, the state appearing by the County Attorney and the defendant appearing by his attorney of record, the motion was presented to the district court which, after a full and complete hearing, found that through inadvertence in the preparation of the journal entry reference to the sentencing statute was omitted and that although such journal entry was deficient in that respect it was susceptible to correction through an order nunc pro tunc. Whereupon, after making such findings, and others supporting them, the court by written order, dated January 9, 1961, sustained the state's motion and directed that the journal entry of January 13, 1958, be amended by adding the phrase: 'Sentence herein imposed under the provisions of G.S.1949, 21-523.'

Subsequently defendant perfected the instant appeal wherein, as we view the record presented, the only question properly before us for appellate review is that the district court had no power or authority to correct the journal entry in manner and form as heretofore indicated.

This, we may add, is due in part to one of our recent decisions in a case where this appellant unsuccessfully contended that the judgment and sentence here involved was void because of the same journal entry defect he now claims was erroneously corrected by the sentencing court in the case at bar. See Moses v. Hand, 188 Kan. 317, 362 P.2d 80, certiorari denied, 368 U.S. 863, 82 S.Ct. 110, 7 L.Ed.2d 61, where we said and held:

'This appeal in a habeas corpus proceeding raises only one question as to a minor fault in the journal entry of the judgment in which the appellant was convicted after a plea of guilty to a charge of second degree burglary. The journal entry has long ago been corrected by an order nunc pro tunc. The order denying the application for a writ of habeas corpur is affirmed upon the authority of Wilson v. Hudspeth, 165 Kan. 666, 198 P.2d 165 [certiorari denied 335 U.S. 909, 69 S.Ct. 410, 93 L.Ed. 442, rehearing denied 336 U.S. 911, 69 S.Ct. 511, 93 L.Ed. 1075]; Browning v. Hand, 184 Kan. 365, 366, 336 P.2d 409 [certiorari denied, 361 U.S. 926, 80 S.Ct. 295, 4 L.Ed.2d 240]; Converse v. Hand, 185 Kan. 112, at pages 115-116, 340 P.2d 874, at page 877, and authorities cited. It is hereby so ordered.'

In the case from which we have just quoted we had before us, prior to the rendition of our decision, the very same order of which the appellant now complains and, in disposing of the merits of the appeal, recognized at least by inference, if not specifically,...