State v. Sorrentino

• Decision Date: 17 February 1925
• Docket Number: 1289
• Citation: 233 P. 142,32 Wyo. 410
• Parties: STATE v. SORRENTINO [*]
• Court: Wyoming Supreme Court

233 P. 142

32 Wyo. 410

STATE v. SORRENTINO ^[*]

No. 1289

Supreme Court of Wyoming

February 17, 1925

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Mike Sorrentino was originally convicted of murder in the second degree. Upon appeal the conviction was reduced to that of manslaughter. On application for bail pending appeal from judgment resentencing him. No briefs.

Bail denied.

David J. Howell, Attorney General for plaintiff and respondent.

William C. Mentzer for defendant and appellant.

OPINION

Per Curiam.

The defendant was originally convicted of the crime of murder in the second degree. He appealed to this court and the judgment was modified, reducing the conviction from murder in the second degree to that of manslaughter. 224 P. 420. We said in that case:

"The state accordingly may elect by writing filed in this court within 30 days to take a new trial, in which event the judgment will be reversed, and the cause remanded for a new trial. Unless that is done, the judgment will be reversed as to murder in the second degree and affirmed for manslaughter and the case remanded to the district court, with direction to cause the prisoner to be brought before it to be resentenced for that crime, taking into consideration the time already served by the defendant and to make all necessary orders not inconsistent herewith."

The defendant filed a petition for a rehearing claiming then, as now, that this court could not lawfully modify the judgment as aforesaid but should send the case back for a new trial. An oral argument was granted, but the petition for rehearing denied. 228 P. 283. The state did not elect to take a new trial and the case was accordingly remanded to the district court with direction to cause the prisoner to be brought before it to be resentenced for the crime of manslaughter taking into consideration the time already served by the defendant. The statute authorizes an imprisonment in the penitentiary for a period of not more than twenty years for the crime of manslaughter. Sec. 7070, W. C. S. 1920. The defendant had already served a term of a year and four months under the former sentence, and the trial court resentenced him, to comply with the order of this court, to a period of imprisonment of not less than sixteen years and not more than seventeen years, and the sentence appears therefore, to be in strict compliance with the order of this court. The defendant excepted to the judgment so entered upon the ground theretofore urged in this court, namely, that the court could not lawfully pronounce judgment for the crime of manslaughter, and upon the further ground that the sentence imposed was excessive. Thereupon an appeal was taken to this court from the latter judgment, and the same grounds urged as error below are urged in this court. The present proceeding is an application that the defendant be admitted to bail pending the appeal.

In the absence of a statute no right to be admitted to bail exists after conviction. In re Boulter, 5 Wyo. 263, 39 P 875. But we are cited to Section 6414, W. C. S. 1920, which provides as follows:

"The judge of the trial court, or any justice of the Supreme court in any criminal cause shall, on such appeal being perfected, admit the defendant to bail in such sum as shall be deemed proper in all bailable cases, and the district court, after conviction, shall also stay the execution of the judgment or sentence pending the taking of the appeal, and in bailable cases, admit the defendant to bail."

Section 7559, W. C. S. 1920, provides, among other things, as follows:

"Provided, that whenever such person is convicted of a bailable felony except murder in the second degree * * * it shall be the duty of the court to fix reasonable bail to be given by the defendant * * * conditioned for the appearance of the persons so convicted on the first day of the next term of said court, and from term to term thereof until the final disposition of said case by the supreme court of the state, and to abide the final judgment and order of the court therein."

These sections and section 7589, W. C. S. 1920, which gives the court the power to "vacate, modify or annul" a judgment of the district court in criminal cases must be construed in pari materia.

It is the contention of the attorney general that the statutes do not contemplate that bail should be permitted to be given in a case like the present where the appeal is taken from a judgment entered by the district court merely in conformity with the order of this court. The attorney for defendant maintains the contrary, particularly in view of the fact, as is contended, that a new question is raised for the first time, namely, whether or not the sentence imposed is excessive. Where a party has brought a proceeding for appellate review and it has been prosecuted to a final determination in the appellate court, the general rule is that unless there have been new proceedings in the cause, he cannot again bring the case up for review. 3 C. J. 345. The rule goes further, and it is held that where a case is decided on appeal or error and a mandate is issued directing the lower court to enter...