State v. Taylor

• Decision Date: 19 October 1965
• Docket Number: No. 51780,51780
• Citation: 258 Iowa 94,137 N.W.2d 688
• Parties: STATE of Iowa, Appellee, v. Alvie TAYLOR, Appellant.
• Court: Iowa Supreme Court

Page 688

137 N.W.2d 688

258 Iowa 94

STATE of Iowa, Appellee, v. Alvie TAYLOR, Appellant.

No. 51780.

Supreme Court of Iowa.

Oct. 19, 1965.

Joseph J. DeRaad, Sioux City, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Edward F. Samore, County Atty., for appellee.

STUART, Justice.

The sole question presented here is whether a trial judge has the power to set aside a sentence which is not in accordance with the statutory sentence and impose a proper sentence after defendant has entered upon the execution of the sentence when the statutory sentence results in an increased punishment. We hold the trial judge does have such power.

On October 2, 1964 defendant entered a plea of guilty to the crime of attempt to break and enter as defined by Section 708.10, Code of Iowa, which provides: a person who commits such crime 'shall be imprisoned in the penitentiary not more than five years, or fined not exceeding three hundred dollars and imprisoned in the county jail not more than one year'. (Emphasis supplied.)

The first sentence imposed was imprisonment in the county jail for 12 months. Credit of two months was allowed for time spent in jail between the arrest and the sentencing. There was no provision for any fine. Apparently this defect in the sentence came to the court's attention when defendant, by letter, sought a resentencing because no presentence investigation had been made. The trial court on December 10, 1962 set aside the first sentence and entered a new judgment and sentence increasing the penalty to include a $300 fine.

It is conceded the first sentence imposed by the court was less than the statutory minimum. Defendant argues the sentence however is merely erroneous and not void. Several early Nebraska cases and a few others from foreign jurisdictions are cited which appear to support this position. However this is not the majority rule nor the rule in Iowa.

'Where the sentence imposed is illegal and void, the court may set it aside and pronounce a valid sentence, even though the execution of it has commenced, and without regard to the time when, or term at which it is done. In such a case the new sentence may increase the punishment. * * *

'In the application of the foregoing rules some doubt may arise as to when a sentence is void, and a sentence not permitted by statute or at variance with statutory requirements may be considered void. * * *' 24 C.J.S. Criminal Law § 1589b, p. 604.

'Where a court has imposed a sentence which is void either because of lack of jurisdiction, or because it was not warranted by statute for the particular offense, this can be set aside and a valid sentence substituted.' Note: 44 A.L.R. 1212.

We recently answered defendant's argument in State v. Shilinsky, 248 Iowa 596, 602, 81 N.W.2d 444, 448. There defendant was first sentenced to a term in the county jail and required to pay a fine. The statute did not provide for anything but a penitentiary sentence. Two days later the prisoner was recalled and sentenced in accordance with the statute and the indeterminate sentence law. We said:

'But a sentence of the kind pronounced against defendant on April 11 would have had no validity and would not have prevented a later proper sentence, even though it had been properly recorded in the judgment docket. This is for the reason that it did not accord with the sentence provided by the Iowa statute for the offense of which the defendant was convicted. * * *

'The defendant urges that he had begun to serve the first sentence before the second one was imposed, and that the court had lost jurisdiction. This would not be true if no judgment of the court had been rendered, because the supposed sentence...