State v. Sefcheck

• Decision Date: 05 March 1968
• Docket Number: No. 52729,52729
• Citation: 157 N.W.2d 128,261 Iowa 1159
• Parties: STATE of Iowa, Appellee, v. Edward Louis SEFCHECK, Appellant.
• Court: Iowa Supreme Court

Page 128

157 N.W.2d 128

261 Iowa 1159

STATE of Iowa, Appellee, v. Edward Louis SEFCHECK, Appellant.

No. 52729.

Supreme Court of Iowa.

March 5, 1968.

Rehearing Denied April 9, 1968.

Pasley, Singer & Seiser, Ames, for appellant.

Richard C. Turner, Atty. Gen., Wm. A. Claerhout, Asst. Atty. Gen., Des Moines, and Charles E. Vanderbur, County Atty., Ames, for appellee.

LeGRAND, Justice.

Defendant appeals from judgment following his conviction of uttering a forged instrument in violation of section 718.2, Code, 1966. Before considering his assigned errors, an extended discussion of the unusual circumstances which bring him here is necessary.

On May 23, 1966, defendant bought several small items of merchandise from Hanson's Mobilgas Service Station in Ames, Iowa. In payment he presented a check which he signed in the name of W. C. Tully. Defendant's true name is Edward Louis Sefcheck. The amount of the purchases was deducted from the check, and the balance was given defendant in cash. Because of the unusual identification numbers on the check, Mr. Hanson almost immediately became suspicious of its validity and called the police. An officer of the Ames Police Department and Mr. Hanson together located defendant at a local tavern, where he was questioned concerning the event. Although denying the check was worthless, defendant returned the $50.00 to Mr. Hanson. At the same time he was arrested for intoxication, held for investigation, and ultimately charged with uttering a forged check in violation of section 713.3, Code of Iowa.

On June 2, 1966, defendant appeared with his attorney in the District Court of Story County. A plea of guilty was then entered and defendant was sentenced to a term of not more than seven years in the penitentiary at Ft. Madison. Defendant filed a petition for writ of habeas corpus in the District Court of Lee County on October 29, 1966, seeking his release on eight separate grounds. The only one important here is that his plea and the subsequent judgment pronouncing sentence thereon were void as being in violation of section 777.12, Code, 1966, which provides:

'The plea of guilty can only be made in open court and By the defendant himself and in the presence of legal counsel acting on behalf of the defendant if the defendant is charged with a felony in substantially the following form: 'The defendant pleads that he is guilty of the offense charged in the indictment', and shall be entered of record. * * *' (Emphasis added.)

The Lee District Court, by an order dated December 20, 1966, found defendant's plea had been made for him by his attorney. The section above set out requires a guilty plea to be made by the defendant personally, and the Lee District Court found the failure to observe that statute rendered the proceedings void. The order of December 20, 1966, included this provision:

'Under section 663.37 and 663.38 of the 1966 Code of Iowa, the court finds he is required * * * to determine whether an unconditional release is warranted or whether the petitioner should be held for the proper authorities. Under the record in this case, the court finds that the petitioner should be held for proper authorities and returned to the Story County District Court for sentencing. Birk v. Bennett, 258 Iowa 1017, 141 N.W.2d 576.

'It is therefore hereby ordered that the petitioner Edward L. Sefcheck be returned to the Story County District Court for sentencing in accordance with the requirements of 777.12 of the 1966 Code of Iowa.'

Despite the provisions of this order defendant was not returned to Story County until January 30, 1967, approximately 40 days thereafter. From June 2, 1966, the date he was sentenced under section 713.3, until February 6, 1967, when his present counsel was appointed to represent him, he was without counsel and was at all times in custody. On February 14, 1967, after defendant asked leave to withdraw his plea, the county attorney dismissed the pending information under section 713.3 and filed a new information alleging violation of section 718.2, Code, 1966. The one charges uttering of a false check and the other uttering a forged instrument. The new information was based on the same check and the same conduct as the original charge.

Defendant was tried on this latter charge beginning March 27, 1967. Upon a jury verdict of guilty, judgment was entered sentencing defendant to a term of not more than ten years in the penitentiary at Fort Madison, Iowa, and he now appeals therefrom.

In addition to the general claim there had been such procedural unfairness and lack of due process that the charge should have been dismissed or a new trial granted, defendant assigns these six specific errors: (1) That the Story District Court failed to comply with the habeas corpus order of the Lee District Court; (2) That by the dismissal of the charge under section 713.3 and the filing of one under section 718.2 he was subjected to double jeopardy; (3) That he was denied a speedy trial in violation of section 795.2, Code, 1966; (4) That certain evidence illegally seized and obtained in violation of his constitutional rights was improperly admitted and that he was not properly arraigned; (5) That the State failed to prove one of the essential elements of the charge against him; and (6) That he was deprived of a fair trial because of prejudicial newspaper publicity.

It will be noted the first three assignments relate to the dismissal of the original information under section 713.3 and the filing of a new one alleging violation of section 718.2 while the last three are concerned with alleged errors in the trial itself. We discuss them in the order listed.

I. Defendant asserts the State's right is limited to prosecuting him for the original offense because the Lee District Court order so provided. Defendant leans heavily on the language in the order returning defendant to Story County for 'sentencing.' Although this term inaccurately describes what the order provided, the intent and purpose are clear. The Lee District Court found section 777.12 had not been complied with and voided defendant's sentence on that sole ground. Section 777.12 deals exclusively with entry of a plea. This is the defect in the original proceedings which the court found to be fatal. It was only because the plea had been improperly entered that the subsequent sentence was set aside. Therefore returning the defendant to Story County simply for re-sentencing would have accomplished nothing.

We do not understand the Lee District Court order purported, as defendant claims to limit the Story District Court to proceeding on the information under section 713.3, nor could it. All that was before the Lee District Court was defendant's petition for writ of habeas corpus on the ground that his detention was illegal. The court found it was and ordered defendant's return to Story County under the authority of Birk v. Bennett, 258 Iowa 1016, 141 N.W.2d 576.

We hold the Lee District Court could only sustain the writ or quash it. If sustained, the Lee District Court could either order his release or return him to Story County for further proceedings there. It could not determine what those proceedings should be.

Birk v. Bennett, supra, offers no support for defendant's position. That decision went no further than to say one whose conviction is set aside on constitutional grounds need not be unconditionally released but may be held for further proceedings which meet constitutional requirements. The fact that there such proceedings involved retrial on the original charge does not imply no other course is permissible.

As part of this assignment defendant asserts the trial court should not have permitted the county attorney to dismiss the original information and file a new one alleging violation of section 718.2. We include this matter in our discussion in Division II.

II. Defendant next claims he was subjected to double jeopardy because the charge under section 713.3, Code, 1966, was dismissed and a new information was filed alleging violation of section 718.2, Code, 1966, when in fact both were based on the same check and the same facts. The simple answer to defendant's claim is that this cannot be double jeopardy because the proceedings undere section 713.3, having later been set aside as void, did not place him in jeopardy in the first place.

We strongly suspect that defendant, who spent some eight months in the penitentiary on a sentence ultimately set aside upon his petition, will vigorously dissent from our finding that he was not thereby placed in jeopardy. However, jeopardy has a well-established and universally adopted meaning. One cannot be in jeopardy by reason of proceedings before a court which has no jurisdiction to convict or sentence him. A plea of former jeopardy cannot be based on a void sentence. 21 Am.Jur.2d, Criminal Law, section 167, page 232. This is generally true, although there is some authority to the contrary, even if part of the illegal sentence has been served. 22 C.J.S. Criminal Law § 266, page 687. It is also the general rule that one who procures his own release under habeas corpus because of an invalid sentence cannot rely on former jeopardy and further proceedings against him are permissible. 21 Am.Jur.2d, Criminal Law, section 210, page 254; 22 C.J.S. Criminal Law § 245, page 647; Birk v. Bennett, 258 Iowa 1017, 1022, 141 N.W.2d 576; United States v. Ewell, 383 U.S. 116, 15 L.Ed.2d 627, 86 S.Ct. 773; State v. Dehlar, 257 Minn. 549, 102 N.W.2d 696, 89 A.L.R.2d 496; Annotations, 97 A.L.R. 160.

Our recent decision in State v. Gebhart, 257 Iowa 843, 134 N.W.2d 906, lends further support to what we have said. There an information charging murder was dismissed and another information charging the same offense was filed. To a claim that this constituted double jeopardy, we observed 257 Iowa at page 849, 134 N.W.2d at page 909. '* * * The dismissal of the prior charge did not prevent ...