State v. Nelson
| Decision Date | 23 February 1967 |
| Citation | 424 P.2d 223,246 Or. 321 |
| Parties | The STATE of Oregon, Respondent, v. Sidney E. NELSON, Appellant. |
| Court | Oregon Supreme Court |
Sidney E. Nelson, Salem, appellant, in pro. per.
George Van Hoomissen, Dist. Atty., and Jacob B. Tanzer, Deputy Dist. Atty., Portland, for respondent.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
The defendant Sidney E. Nelson was found guilty of contempt of court and appeals.
The facts are that the defendant and one Woody Leon Beggs were codefendants charged with the crime of assault and robbery, being armed with a dangerous weapon. The defendant entered a plea of guilty and was sentenced to the Oregon State Penitentiary. He then appeared as a witness on behalf of the state in the trial of Beggs and testified fully to his and Beggs participation in the crime charged.
It appears from the record that a disposition of Beggs' case was not accomplished at this trial and a new trial was commenced in the Circuit Court for the county of Multnomah. The defendant was returned from the penitentiary to appear on behalf of the state, and on November 4, 1965, he was sworn as a witness, but refused to testify on the grounds of self-incrimination.
The questions asked of the defendant pertained to the crime of which he already stood convicted, and to which he had previously testified in the prior trial of Beggs. The courts are in agreement that the privilege against self-incrimination is waived where the witness has entered a plea of guilty and been sentenced and the examination is directed to eliciting facts concerning the crime of which he was convicted. Annotations, 9 A.L.R.3rd 991.
After being informed by the trial court that his answers would not incriminate him as he had already been convicted of this crime, the defendant withdrew his contention of self-incrimination, but refused to answer the questions.
The trial court then found the defendant guilty of contempt and orally sentenced the defendant to 'five months in the county jail to be served concurrently with' his present sentence to the penitentiary.
A short time thereafter, and on the same day, the trial court had the defendant returned into court and the following occurred:
'THE COURT: Mr. Grant--and let the record shows that Mr. Nelson is present, the Court misspoke itself when it sentenced the defendant, Mr. Nelson, in the contempt charge, I said he will serve five months in the county jail concurrently with this case, No. C-42161, and what I meant was consecutively, otherwise there would be no punishment at all, so it's quite obvious, and so I want the order to reflect the thinking of the Court and it will be consecutively.'
Thereafter, the trial court signed and caused to be entered in the records of the court the judgment of contempt and sentence providing that the jail sentence for contempt should be commenced after defendant's present sentence to the penitentiary expired.
The sole question presented by this appeal is whether the trial court may, after having orally pronounced his sentence, change that sentence.
Subject to exceptions not here pertinent, it is the rule in this state that the trial court may not revise its judgment and increase the sentence even during the term at which it was pronounced if 'the judgment has gone into effect by commitment of the defendant under it, * * *.' State v. Ludwig, 218 Or. 483, 492, 344 P.2d 764, 768; State v....
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Ellison v. State
...denied, 353 U.S. 975, 77 S.Ct. 1060, 1 L.Ed.2d 1137 (1957); United States v. Romero, 249 F.2d 371, 375 (2d Cir.1957); State v. Nelson, 246 Or. 321, 424 P.2d 223, 224, cert. denied, 389 U.S. 964, 88 S.Ct. 340, 19 L.Ed.2d 379 (1967) (witness was sentenced and then did testify at co-defendant'......
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Ellison v. State
...operate. United States v. Gernie, 252 F.2d 664 (2d Cir.1958); United States v. Cioffi, 242 F.2d 473 (2d Cir.1957); and State v. Nelson, 246 Or. 321, 424 P.2d 223 (1967). 4) Through direct appeal--Some courts go further and hold that even following conviction and sentencing, there is a possi......
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Spencer v. Coursey
... ... [t]here's no conditions on the Fifth ... Amendment.” Id. at 86-87 ... The ... state took no position on the issue. Id. at 85 ... Still ... outside the presence of the jury, Dickison called Burton to ... authority further supports that the privilege against ... self-incrimination extends through sentencing. See State ... v. Nelson, 246 Or. 321, 323, 424 P.2d 223, 224 (1967) ... (the privilege against self-incrimination is waived where a ... witness has entered a ... ...
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Greenwood Prods., Inc. v. Greenwood Forest Prods., Inc., 050302553
...by operation of law when the plea is entered”; holding that “the plea is not a waiver of the privilege at sentencing”); State v. Nelson, 246 Or. 321, 323, 424 P.2d 223, cert. den.,389 U.S. 964, 88 S.Ct. 340, 19 L.Ed.2d 379 (1967) (“The courts are in agreement that the privilege against self......