State v. Thomas, 1086
| Decision Date | 16 October 1956 |
| Docket Number | No. 1086,1086 |
| Citation | 302 P.2d 261,81 Ariz. 124 |
| Parties | STATE of Arizona, Appellee, v. Alvin Clarence THOMAS, Appellant. |
| Court | Arizona Supreme Court |
Benjamin Lazarow and Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., L. Alton Riggs, Asst. to the Atty. Gen., Raul Castro, Pima County Atty., and H. E. Rogge, Jr., Deputy County Atty., Tucson, for appellee.
Alvin Clarence Thomas was in separate counts charged and convicted of the crime of committing a lewd and lascivious act, a felony, and the crime of contributing to the delinquency of a minor, a misdemeanor. On appeal to this court we reversed the conviction on the felony charge and affirmed the conviction on the misdemeanor. State v. Thomas, 79 Ariz. 355, 290 P.2d 470. In that decision in reciting the facts, we erroneously stated that the defendant was sentenced to imprisonment in the state prison on the felony and in the county jail on the misdemeanor. The true fact is that the defendant was sentenced to the state prison on both counts, the sentences to run concurrently. No error was assigned in this court questioning the validity of the sentence to the state prison on the misdemeanor conviction.
Upon the case having been thus disposed of in this court, the county attorney moved to set aside the original sentence and resentence the defendant. The trial court sentenced the defendant to not less than eleven nor more than twelve months in the county jail. Pending the first appeal and until the second sentence the defendant was on bail, and is on bail during this appeal.
Defendant now appeals from the action of the court in resentencing him, claiming that if the state wished to question the validity of the original sentence, it should have done so by cross-appeal the first time the case was in this court and that by the resentence the trial court changed and modified the mandate of this court on the first appeal.
Contributing to the delinquency of a minor is a misdemeanor and the penalty as to imprisonment is not to exceed one year in the county jail. Section 43-1008, A.C.A.1939, A.R.S.1956, section 13-822. When the statute prescribes imprisonment in the county jail the court has no jurisdiction to impose a sentence in the state prison and his action in attempting to do so is void. In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; State v. Dooly, 14 Wash.2d 459, 128 P.2d 486.
Defendant seems to contend that since this court has heretofore affirmed the conviction on the misdemeanor charge, it likewise affirmed the sentence and to allow the trial court to resentence the defendant would permit that court to modify or change the judgment and mandate of this court. With this we cannot agree. The validity of the sentence was never presented to nor passed upon by this court. Its validity not having been brought to our attention we assumed the sentence was in the county jail and so stated. When a void...
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State v. Wiese
...former appeals did not adjudicate the legality of the sentences they do not preclude subsequent attack and correction. State v. Thomas, 81 Ariz. 124, 302 P.2d 261 (1956); 24 C.J.S. Criminal Law § 1587 at 589; 24B C.J.S. Criminal Law § 1952(9) at 415--416; see also United States v. Coke, 404......
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State v. Shaw
...in the briefs do not substitute for evidence in the record. Hunter v. State, 43 Ariz. 269, 30 P.2d 499 (1934); cf. State v. Thomas, 81 Ariz. 124, 302 P.2d 261 (1956). The defendant assigns as error the failure of the trial court to exclude evidence of the oral confession made by the defenda......
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West v. Mallory G M..W., 1 CA-JV 17-0087
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State v. Tuggle
...which required evidence. We do not find the court abused its discretion in not ordering a hearing before sentence. State v. Thomas, 81 Ariz. 124, 302 P.2d 261. The third and final question presented by counsel for defendant is that the sentence was excessive. He states the court did not at ......