State v. Tatum, 36404

Decision Date07 March 1963
Docket NumberNo. 36404,36404
Citation379 P.2d 372,61 Wn.2d 576
PartiesSTATE of Washington, Respondent, v. Ralph TATUM, Appellant.
CourtWashington Supreme Court

Ralph Tatum, pro se.

Roger L. Olson, Pros. Atty. Franklin County, Pasco, for respondent.

DONWORTH, Judge.

This is an appeal from a corrected judgment and sentence entered by the superior court of Franklin County following this court's order of November 15, 1961.

The sequence of events in Franklin County Cause No. 1868, which has twice been before the superior court and is now before this court for the third time, can be summarized as follows:

March 16, 1959, an information was filed charging appellant, Ralph Tatum, with the crime of first-degree forgery. Upon this charge, there was a trial before a jury, which rendered a verdict of guilty. On October 2, 1959, before judgment and sentence were entered, a supplemental information with the same cause number was filed charging appellant with the crime of being an habitual criminal. Upon this charge, appellant waived his right to a jury trial and the matter was heard before the court, which found him 'guilty of the crime of being an habitual criminal.'

October 20, 1959, appellant was adjudged guilty of the crimes as charged in the information and supplemental information and sentenced to life imprisonment. An appeal from this judgment was taken which resulted in an affirmance. State v. Tatum, 58 Wash.2d 73, 360 P.2d 754 (1961). The errors assigned in that appeal related solely to the forgery conviction.

Appellant subsequently applied to this court for a writ of habeas corpus, alleging that he was being unlawfully imprisoned pursuant to the nonexistent crime of being an habitual criminal. Upon consideration of the petitioner's application, the following finding and order was made on November 15, 1961:

'The court now finds:

'1. The petitioner was improperly sentenced to life imprisonment in the Washington State Penitentiary pursuant to the crime of BEING AN HABITUAL CRIMINAL.

'NOW, THEREFORE, IT IS HEREBY ORDERED that the Superintendent of the Washington State Penitentiary deliver the petitioner, RALPH TATUM, into the custody and care of Franklin County for resentence by the Superior Court for Franklin County, Washington for the crime of FORGERY IN THE FIRST DEGREE, taking into consideration the finding that the petitioner is an HABITUAL CRIMINAL. * * *' (Italics ours.)

It is well established that being an habitual criminal is a status and not a crime, and that judgment and sentence entered for the crime of being an habitual criminal are void. State v. King, 18 Wash.2d 747, 140 P.2d 283 (1943); In re Towne, 14 Wash.2d 633, 129 P.2d 230 (1942). Although appellant was sentenced for both the crime of first-degree forgery and of being an habitual criminal, a single sentence was imposed for the two purportedly substantive offenses and such sentence is not divisible into valid and void components. When an individual has been properly convicted of a substantive crime but without having had a valid sentence imposed, the proper procedure is to remand to the trial court for resentencing. However, in entering the italicized portion of the above order, we failed to take cognizance of our holding in In re Frye v. Delmore, 47 Wash.2d 605, 288 P.2d 850 (1955). It was the express holding of this court in that case that an individual's status as an habitual criminal cannot be founded upon the conviction of the nonexistent crime of being an habitual criminal. We stated at page 606, 288 P.2d at page 851 of that decision:

'As above stated, petitioner was (in Cause No. 248) charged with the crime of being an habitual criminal and was convicted of that charge. We find nothing in the record to substantiate respondent's contention that the petitioner has been convicted of having the status of being an habitual criminal. As was recognized in State v. West, 197 Wash. 595, 86 P.2d 192, the prosecuting attorney has the power to elect to charge, or not to charge, an individual, falling within that category, with the status of an habitual criminal. No cases have been called to our attention in support of the proposition that one's status as an habitual criminal can be founded upon a conviction of the nonexistent crime of being an habitual criminal. Since a conviction of guilty of the crime of being an habitual criminal and the judgment and sentence had thereon are void, they must also be void for all purposes. * * *' In the instant case the trial court, in entering the corrected judgment, relied upon the conviction of the crime of being an habitual criminal as having established appellant's status as an habitual criminal. The prosecuting attorney did move to amend the supplemental information 'to conform to the proof' by changing the word 'crime' to 'status' by interlineation, which motion was granted. It is manifest that our holding in In re Frye v. Delmore, supra, cannot be circumvented in this manner. Appellant requested that he be rearraigned on the amended supplemental information and that request should have been granted. Error is properly assigned to the refusal to rearraign appellant. In regard to...

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