State v. Wieland

• Decision Date: 12 December 1933
• Docket Number: No. 42009.,42009.
• Citation: 217 Iowa 887,251 N.W. 757
• Parties: STATE v. WIELAND.
• Court: Iowa Supreme Court

217 Iowa 887

251 N.W. 757

STATE

v.WIELAND.

No. 42009.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Johnson County; J. P. Gaffney, Judge.

Defendant was charged with the crime of manslaughter for the death of Morgan Hartsock caused by an automobile driven by defendant in Johnson county on February 20, 1933. The defendant pleaded guilty on February 21, 1933, and was immediately sentenced to imprisonment in Fort Madison penitentiary and fined $500. The judgment was not entered in the court's judgment “record book” until February 27, 1933. Defendant was taken to the penitentiary on February 22 under a commitment issued on February 21. On February 25, before the judgment was entered in the court's “record book,” the defendant filed a withdrawal of his plea of guilty, and requested permission to enter a plea of not guilty in lieu thereof. This application was denied by the court, and defendant appeals.

Reversed.

Messer & Nolan, of Iowa City, for appellant.

F. B. Olsen, Co. Atty., of Iowa City, and Edward L. O'Connor, Atty. Gen., for the State.

KINTZINGER, Justice.

In the dusk of the evening of February 20, 1933, defendant, while driving an automobile near Iowa City, in Johnson county, ran into and caused the death of Morgan Hartsock. On February 21, 1933, the state of Iowa filed in the district court of Johnson county, Iowa, a county attorney's information accusing the defendant, Joseph B. Wieland, of the crime of manslaughter in unlawfully killing Morgan Hartsock on February 20, 1933. In a blank space on the information appeared a statement signed by Joseph B. Wieland substantially as follows: “I understand the nature of the charge against me, and have been advised of my legal rights, which I hereby waive. I have received a copy of the information, and waive reading it. I am guilty as charged in said Information. I waive arraignment, time of appearance, and consent that the court pronounce judgment and sentence immediately.”

On February 21 he was brought into court and pleaded guilty. Defendant was not represented by any counsel at the trial. When called up for sentence, he admitted signing the statement contained in the information and that the statements therein were true. Thereupon the court, on February 21, 1933, pronounced the following sentence: “It is the sentence and judgment of this court that you be imprisoned in the State Penitentiary at Ft. Madison, Iowa, for an indeterminate period of time, not exceeding eight years and fined $500.00 and the costs of this action.”

This sentence was written on the court's calendar at that time. On the same day it was also transcribed into the criminal appearance docket and fee book No. 6 of Johnson county district court. The judgment was not entered upon the district court “record book” until February 27, 1933. On February 21, 1933, an execution was issued by the clerk to the sheriff committing the defendantto the state penitentiary. Under this writ the defendant was delivered to the warden of the State Penitentiary at Fort Madison on February 22, 1933. On February 25, 1933, defendant filed a withdrawal of his “plea of guilty,” with his request to enter his plea of “not guilty.” On February 28 the court denied him permission to withdraw the plea of guilty and substitute a plea of “not guilty.” From this ruling defendant appeals.

I. It is contended that the court erred in refusing to allow defendant to withdraw his plea of guilty and substitute a plea of not guilty in lieu thereof, because the application so to do was filed before the judgment was entered on the court's “record book” as required by statute. Defendant claims this right under section 13803 of the Code because his application to withdraw his plea of guilty was filed before any judgment was entered against him; that the entry of judgment in the “record book” after he had withdrawn his plea of guilty, was void because at that time there was no valid plea upon which a judgment could be entered.

[1] This error directly raises the question as to whether or not the action of the court and clerk on February 21, 1933, constituted a judgment. It is claimed that the pronouncement of sentence by the court together with a written memorandum thereof in the court's calendar does not constitute a judgment, and does not become such until it is entered in the court's judgment “record book” and made a part of the court records. If the action of the court and clerk did not become valid as a judgment until entered on the district court “record book” on February 27, 1933, then defendant had a legal right to withdraw his plea of guilty.

Section 13803 provides: “At any time before judgment, the court may permit the plea of guilty to be withdrawn and other plea or pleas substituted.” The right given to a defendant under this statute is mandatory, and he has an absolute right thereunder to withdraw a plea of guilty at any time before judgment. State v. Henderson, 197 Iowa, 782, 198 N. W. 33. And it is error to refuse to allow defendant to withdraw his plea and file another instead. State v. Hale, 44 Iowa, 96;Jones v. McClaughry, 169 Iowa, 281, 151 N. W. 210;State v. Kraft, 10 Iowa, 330.

[2] It therefore becomes necessary to determine whether or not a judge's pronouncement of sentence in a criminal case constitutes a valid judgment before it is entered in the court's “record book,” which is made a part of the court records by statute. It is contended by appellant that an oral pronouncement of a sentence by the court and a written memorandum thereof in the court's calendar is not a valid judgment until entered in the court's ““record book.”

Code, § 11582, provides as follows: “All judgments and orders must be entered on the record of the court, and must specify clearly the relief granted or order made in the action.” (Italics ours.)

Section 10830 provides that the court records shall be contained, among others, in the following books: (1) Record book. One containing the entries of the proceedings of the court, which may be known as the “record book,” and which is to have an index referring to each proceeding in each cause under the names of the parties. (2) A book containing an abstract of the judgment known as a “judgment docket.”

Code, § 13971, provides: “When a judgment of imprisonment, either in the penitentiary or county jail, is pronounced, an execution, consisting of a certified copy of the entry thereof in the record book, must be forthwith furnished to the officer whose duty it is to execute the same, who shall proceed and execute it accordingly, and no other warrant or authority is necessary to justify or require its execution.” (Italics ours.)

The evidence in this case shows without conflict that the execution, or mittimus, issued herein was not issued under authority of section 13971 of the Code because that section requires a certified copy of the entry of the judgment in the “record book” to be furnished the officer executing the commitment. No such copy of the entry in the “record book” could have been furnished on February 21 because no such entry was made in that book until February 27, 1933. Section 11582 provides that all judgments and orders must be entered on the “record of the court,” and must specify clearly the relief granted or order made in the action.

These statutes clearly imply that all judgments and orders must be entered in the court's “record book” and must clearly specify the relief granted or order made in the action. It is the settled rule of law in this state that it is essential to the validity of a judgment that it be entered upon the district court “record book.” This book contains a statement of the proceedings of the court, and its records, as therein contained, must always be consulted for a determination of what has been done by the court. It has been repeatedly held by this court that a judge's calendar containing the judge's written order, together with the entry thereof in the “judgment and appearance docket and fee book” is not sufficient to constitute a final judgment; and that there is no final judgment until entered in the court's “record book.” Case v. Plato, 54 Iowa, 64, 6 N. W. 128;Traer Bros. v. Whitman, 56 Iowa, 443, 9 N. W. 339;Miller v. Wolf, 63 Iowa, 233, loc. cit. 238, 18 N. W. 889;Callanan v. Votruba, 104 Iowa, 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. Rep. 538;King v. Dickson, 114 Iowa, 160, 86 N. W. 263;Kennedy v. Citizens' Nat. Bank, 119 Iowa, 123, 93 N. W. 71;Sievertsen v. Chemical Co., 160 Iowa, 662, 133 N. W. 744, 142 N. W. 424;Baxter v. Pritchard, 113 Iowa, 422, 85 N. W. 633.

This rule has been so often reiterated by this court that we deem it unnecessary to discuss the reasons therefor, but will simply quote from a few of these cases.

In Case v. Plato, 54 Iowa, 64, 6 N. W. 128, it was held that, where the record book contained an entry of judgment for a blank amount as damages, and a specified amount of costs, the judgment could be enforced only to the amount of such costs. In that case we said (loc. cit. 66 of 54 Iowa, 6 N. W. 128, 129): “The books required to be kept by the clerk of the court, and which, in connection with the original papers, constitute the records of the court, are the record book, the judgment docket, the fee book, the sale book. * * * See Code, §§ 196 and 197. The court calendar * * * does not, under the sections referred to, constitute a part of the record. The clerk is required to keep-‘(1) A book containing the entries of the proceedings of the court, which may be known as the “record book;” * * * (2) a book containing an abstract of the judgments, * * * the names of the parties, the date of the judgment, * * * which book may be known as the judgment docket. * * *’ Section 2864 of the Code provides: ‘All judgments and orders must be entered on the record of the court, and must specify clearly the relief granted, or order made in the action.’ * * * It is apparent, from the foregoing provisions,...