State v. Thomson
| Decision Date | 31 March 1970 |
| Docket Number | No. 5955,5955 |
| Citation | 263 A.2d 675,110 N.H. 190 |
| Parties | STATE v. John A. THOMSON. |
| Court | New Hampshire Supreme Court |
George S. Pappagianis, Atty. Gen., W. Michael Dunn, Asst. Atty. Gen., for the State.
Shaines, Madrigan & McEachern, and Craig Turner, Portsmouth, for defendant.
The Superior Court (Keller, J.) reserved and transferred without ruling the question of law whether it had power to review a criminal sentence after the expiration of the term of court during which sentence was imposed when the defendant had not been delivered to the executive department for service of his sentence. This case does not involve an illegal sentence which can be reduced, modified and corrected at any time. Doyle v. O'Dowd, 85 N.H. 402, 159 A. 301; State v. Richard, 99 N.H. 126, 129, 106 A.2d 194; Annot. 106 A.L.R. 847.
The defendant was convicted of being an accessory before the fact of breaking, entering and larceny in the nighttime and was sentenced to a term in the State Prison. His conviction was affirmed on appeal (State v. Thomson, 109 N.H. 205, 247 A.2d 179) and certiorari was denied by the Supreme Court of the United States on March 10, 1969. Thomson v. New Hampshire, 394 U.S. 903, 89 S.Ct. 1011, 22 L.Ed.2d 216. The defendant had been free on bail during these appeals and on March 12, 1969 filed this petition for review of his sentence. Whether the Trial Court has the power to review the sentence imposed is the issue reserved and transferred in this case.
The common law rule that all judicial power over a valid sentence ended with the end of the term at which the sentence was imposed still has much support (Annot. 168 A.L.R. 706) but the rule is being eroded. District Attorney v. Superior Court, 342 Mass. 119, 172 N.E.2d 245; State v. Laws, 51 N.J. 494, 242 A.2d 333; United States v. Benz, 282 U.S. 304, 311, 51 S.Ct. 113, 75 L.Ed. 354. Terms of court have less magical meaning today than they did at common law and courts may review an exercise of discretion in accordance with the demands of justice. See Redlon Co. v. Franklin Square Corporation, 91 N.H. 502, 23 A.2d 370; United States v. Benz, supra; State v. Bess, 53 N.J. 10, 247 A.2d 669. While the conditions and time limits within which such a petition for review of sentence should be considered can be more adequately spelled out in a rule of court, we do not doubt the power of the court to exercise its discretion, if circumstances warrant, in this jurisdiction. Cf. Rule 35 of Federal Rules of Criminal Procedure: ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, s. 6.1 (Approved Draft, 1968).
The fact that many jurisdcitions by rule of court or statute provide some form of review of criminal sentences indicates the concept has some validity. Mueller, Penology on Appeal: Appellate Review of Legal but Excessive Sentences, 15 Vand.L.Rev. 671 (1962); Note, Statutory Structures for Sentencing Felons to Prison, 60 Colum.L.Rev 1134 (1960); 18 Me.L.Rev. 133 (1966). In neither State v. Thomson, 109 N.H. 205, 247 A.2d 179 nor Thomson v. New Hampshire, 394 U.S. 903, 89 S.Ct. 1011, 22 L.Ed.2d 216 was any question raised concerning the sentence that had been imposed in this...
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State v. Breest
...to serve his sentence the certification which took place beyond the same term of court was contrary to our holdings in State v. Thomson, 110 N.H. 190, 263 A.2d 675 (1970), and State v. Dunn, 111 N.H. 320, 282 A.2d 675 (1971), that the superior court could review a valid sentence after the e......
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State v. Fletcher
...involves an illegal sentence, the trial court has the authority to reduce, modify or correct it at any time. See State v. Thomson, 110 N.H. 190, 190, 263 A.2d 675 (1970). In Richard, for example, the defendant was sentenced to not more than eight years on a charge that carried a maximum sen......
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State v. Stern
...159 A. 301 (1932) (court has inherent authority to correct error inadvertently made in its record of sentence); State v. Thomson, 110 N.H. 190, 191-92, 263 A.2d 675 (1970) (court has inherent power to review sentence, modify it or order that it be served before defendant has been delivered ......
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State v. Campbell, No. 5941
...the appeal and in the present case the mandatory sentence was imposed with its execution stayed. The recent case of State v. Thomson, 110 N.H. --, 263 A.2d 675 (1970) permits the Trial Court to reconsider the sentence in the present case. Accordingly we decline to consider the constitutiona......