State v. Sorrows, 6188
Decision Date | 31 October 1957 |
Docket Number | No. 6188,6188 |
Citation | 317 P.2d 324,1957 NMSC 91,63 N.M. 277 |
Parties | STATE of New Mexico, Plaintiff-Appellant, v. Dale SORROWS, Defendant-Appellee. |
Court | New Mexico Supreme Court |
Fred M. Standley, Atty. Gen., Robert F. Pyatt, Paul L. Billhymer, Asst. Attys. Gen., for appellant.
Smith & Smith, Fred C. Tharp, Clovis, for appellee.
The State appeals from an order dismissing a criminal proceeding against the defendant in which it asked imposition of sentence on him following his conviction some seven years earlier of contributing to delinquency of a minor child, at which time the court deferred sentence until the 'further order of the court.'
In the month of July, 1949, the defendant was charged by information with contributing to the delinquency of a minor. Following arraignment he entered a plea of nolo contendere. On September 1, 1949, an order was entered deferring sentence until the further order of the court. So matters stood until July 16, 1956, when the State filed a motion in the case to impose sentence after it was learned the defendant had been accused upon reliable information of again molesting a minor child. An order to show cause was served on him and a hearing had thereon, at the conclusion of which the court entered the order of dismissal mentioned above from which this appeal is prosecuted.
The basis of the trial court's order denying the State's motion to impose sentence was that the court having failed to sentence defendant during the term at which he was convicted and permitted the term to lapse, it lost jurisdiction to impose the sentence at the late day now asked. In other words, the court doubted its jurisdiction to act. If it possessed jurisdiction to act, it might have been compelled to do so by mandamus. Compare National Mutual Savings & Loan Association v. McGhee, 38 N.M. 442, 34 P.2d 1093.
The defendant as an appellee before this Court thinks mandamus, or some proceeding other than this, an appeal, is exactly what the State should have done in the present instance. Accordingly, it has moved to dismiss the appeal and, actually, the matter is presently before us on that motion. Its determination, however, will bring us to the merits of the State's appeal, so we may as well announce now that we find the motion without merit. Counsel for appellee, the defendant, refer us to 1953 Comp. Sec. 41-15-3, reading:
'When state to be allowed appeal or writ of error.--The state shall only be allowed an appeal or writ of error in criminal cases when an indictment, complaint or information is quashed, or adjudged insufficient upon an interlocutory motion, or judgment is arrested.'
Taking this statute as its authority, defense counsel say they can find no basis in it for the present appeal. The State answers it takes no issue with defendant in its assertion that the right of the State to appeal is a creature of statutory authority, in the absence of which it does not exist. The statute in question limits the right to three major categories. Only the third is here involved, viz., when judgment is arrested. Counsel for defendant, themselves, quote 23 C.J.S. Criminal Law Sec. 1514, p. 1333, which accurately sets forth the State's position here. The text states:
One has only to read the order in question to ascertain that the district court deemed it had lost jurisdiction to impose sentence at expiration of the term of court in which defendant entered his plea. The judge considered this delay as error justifying him in declining to impose sentence and, accordingly, discharging the defendant. All of this appeared on the face of the record. Thus the trial court withheld judgment, meaning sentence, Zellers v. Huff, 57 N.M. 609, 261 P.2d 643, deeming the delay in imposing sentence, which appeared on the face of the record, as disclosing a fatal error. Arrest of judgment is action by the court, after verdict, directed to errors which have occurred and appear on the face of the record. State v. Mares, 61 N.M. 46, 294 P.2d 284. Counsel for the State aptly describe the present situation facing it in the following language, to wit:
Viewing the matter as we do, we deem the matter properly before us on the State's appeal. Were it otherwise, we might find occasion to consider its claim whether we should not consider the question before us for review on certiorari, within the doctrine of Gallup Southwestern Coal Co. v. Gallup American Coal Company, 39 N.M. 94, 40 P.2d 627, and Jackling v. State Tax Commission, 40 N.M. 241, 58 P.2d 1167. The conclusion already announced renders this unnecessary.
Coming then to the question involved on the appeal, it is solely one of law, namely, did the court lose jurisdiction to impose sentence on defendant by lapse of time? Whatever may be the rule in other jurisdictions, we announce, unhesitatingly, that the answer is, no. See, In re Lujan, 18 N.M. 310, 137 P. 587; Jordan v. Swope, 36 N.M. 84, 8 P.2d 788; State v. Vigil, 44 N.M. 200, 100 P.2d 228. In the Lujan case, a habeas corpus proceeding, sentence had been imposed on defendant but suspended prior to enactment of the statute authorizing suspension of sentences. L.1909, c. 32, Sec. 1 (now 1953 Comp. Sec. 41-17-1). The defendant violated the condition upon which his sentence was suspended and was committed. In endeavoring to secure his release by habeas corpus, this Court treated the order suspending his sentence void but sustained his resentence on the original conviction, notwithstanding more than two years had elapsed.
In Jordan v. Swope, supra, another habeas corpus proceeding, where a defendant sought freedom by reason of a delayed sentencing, the former sentence being treated as void, the court said [36 N.M....
To continue reading
Request your trial-
Erbe v. State
...delayed forever.' A number of other courts have followed Miller and answered the question posed in Fay negatively. See State v. Sorrows, 63 N.M. 277, 317 P.2d 324 (1951). In Fitzherbert v. State, 229 A.2d 697, 700 (Me. 1967), the Maine court said that the position as to loss of jurisdiction......
-
State v. Travarez
...deferred or suspended sentences even though the period of the deferred or suspended sentence had expired, the cases of State v. Sorrows, 63 N.M. 277, 317 P.2d 324 (1957); State v. Vigil, 44 N.M. 200, 100 P.2d 228 (1940); and Ex Parte Lucero, 23 N.M. 433, 168 P. 713 (1917). It relies on In r......
-
Helton v. State
...has passed. For decisions supporting this view see Miller v. Aderhold, 1933, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 720; State v. Sorrows, 1957, 63 N.M. 277, 317 P.2d 324; Ex parte Dunn, 1926, 50 S.D. 48, 208 N.W. 224; Hoggett v. State, 1912, 101 Miss. 269, 57 So. 811. Contra: People ex rel. ......
-
State v. Apodaca
...S.Ct. 1563, 6 L.Ed.2d 940 (1961). Compare State v. United Bonding Insurance Company, 74 N.M. 21, 389 P.2d 867 (1964); State v. Sorrows, 63 N.M. 277, 317 P.2d 324 (1957). Defendant contends that the holding in Lott v. United States, supra, requires a final determination of guilt or judgment ......