State v. Sorensen, 17735

• Decision Date: 21 December 1981
• Docket Number: No. 17735,17735
• Citation: 639 P.2d 179
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Lawrence J. SORENSEN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 179

639 P.2d 179

The STATE of Utah, Plaintiff and Respondent, v. Lawrence J. SORENSEN, Defendant and Appellant.

No. 17735.

Supreme Court of Utah.

Dec. 21, 1981.

Nancy Bergeson, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

After his first conviction for theft was reversed for trial errors, State v. Sorensen, Utah, 617 P.2d 333 (1980), defendant was re-tried and a jury again convicted him of theft. Defendant concedes that the second trial was free from error. His sole argument on this appeal is that the second sentence was illegal.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that due process of law requires that a defendant be freed from the apprehension that if he appeals his conviction successfully and is then convicted at a second trial the trial judge can retaliate by giving him an increased sentence. Consequently, the Court held, the sentence imposed after re-trial cannot be more severe than the original sentence, unless the reason for the increased sentence, based on identifiable conduct by the defendant following the original trial, appears in the record.

In 1973, our Legislature implemented that requirement in a more stringent fashion that allows for no exceptions. So far as pertinent to this appeal, U.C.A., 1953, § 76-3-405 provides that where a conviction has been set aside on direct review, "the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence ...." In Chess v. Smith, Utah, 617 P.2d 341, 343 (1980), we held that section 76-3-405 also prevents the Utah constitutional right to appeal (Article VIII, § 9) from being impaired "by imposing on a defendant who demonstrates the error of his conviction the risk that he may be penalized with a harsher sentence for having done so."

Following his first conviction, defendant was sentenced to 1 to 15 years in the penitentiary, but execution of that sentence was stayed and he was placed on two years' probation on the condition that he serve six months in the Salt Lake County jail and pay full restitution (approximately $45,000). After his second conviction, defendant was sentenced on May 5, 1981, to 1 to 15 years. No restitution was required, but service of sentence was ordered to begin without delay. By December 18, 1981, when this case was submitted for decision by this Court, defendant had been confined for more than the six months he would have served under the first sentence.

Defendant argues that he is entitled to be resentenced to not more than six months, which would result in his immediate release. The state argues that the second sentence is not "more severe" so long as it gives credit in its maximum term for time already served under the first sentence (none, in this case) and so long as the combination of elements in the second sentence does not outweigh the combination in the original sentence. We find the state's arguments unpersuasive.

In the context of...