State v. Wright

• Decision Date: 15 November 1972
• Docket Number: No. 54604,54604
• Parties: STATE of Iowa, Appellee, v. William A. WRIGHT, Appellant.
• Court: Iowa Supreme Court

Page 72

202 N.W.2d 72

56 A.L.R.3d 916

STATE of Iowa, Appellee, v. William A. WRIGHT, Appellant.

No. 54604.

Supreme Court of Iowa.

Nov. 15, 1972.

Paul H. Kinion and John C. Platt, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Michael S. McCauley, County Atty., for appellee.

Considered en banc.

MASON, Justice.

William A. Wright appeals from judgment and sentence pronounced approximately 20 months after he was placed on probation following a plea of guilty. The appeal presents the question of the authority of trial courts in criminal proceedings to defer imposition of sentence and place of defendant convicted by verdict or guilty plea on probation.

October 5, 1968, a county attorney's information was filed charging Wright with the crime of adultery contrary to section 702.1, The Code. October 17 Wright, represented by counsel, appeared for arraignment and entered a plea of not guilty to the charge. February 6, 1969, defendant again appeared with counsel, withdrew his plea of not guilty and entered a plea of guilty. Upon inquiry of defendant, his counsel and the prosecuting attorney the court was told defendant's plea was a negotiated plea. The court then advised defendant of the possible maximum penalty upon conviction of the crime and, for the purpose of making the constitutionally required determination that defendant's guilty plea was truly voluntary, the court interrogated defendant in accordance with the guidelines set forth in State v. Sisco, 169 N.W.2d 542, 547--552 (Iowa 1969). The guilty plea was accepted and time for pronouncing sentence was set for 4 p.m. the same day.

However, instead of sentencing defendant at that time, the trial judge 'determined that a fuller investigation * * * (was) required in order to determine the proper sentence herein and that execution of judgment or sentence should be withheld and probation granted to defendant in accordance with the provisions of section 247.20.'

He then ordered the 'time of sentence herein' be continued until March 1, 1970, and that 'pending sentence herein' defendant be placed on probation.

April 5, 1969, the court ordered defendant to pay $65 each week for the benefit of his wife and minor children as a condition of his probation.

August 4, 1969, the court changed the date of sentencing from March 1, 1970 to August 15, 1969, since defendant failed to make the support payments. This language appears in the court's order: '(T)ime of sentence was continued to March 1, 1970 with Defendant paroled * * *, pending sentence.'

Neither defendant nor his lawyer appeared on August 15, 1969, for the purpose of sentencing and the court on August 16 authorized the issuance of a warrant for defendant's arrest.

October 7, 1970, defendant appeared with his attorney before the same trial judge who had paroled him. After being advised upon inquiry that there was no lawful reason why judgment should not be imposed upon the defendant at that time, the court then sentenced Wright 'to be confined in the State Penitentiary for a term of not more than three years.'

I. In his one assignment of error defendant contends the court erred in 'pronouncing judgment against * * * (defendant) on October 7, 1970, after first sentencing him on February 6, 1969, pursuant to the provisions of section 247.20 * * *, for the reason that said sentencing and procedures utilized by the court violated the provisions of chapter 789 * * * (The Code).'

Section 247.20, The Code, provides in part:

'Probation by court. The trial court before which any person has been convicted of any crime, * * * may by record entry at time of or after sentence is pronounced but before imprisonment, suspend the sentence and grant probation to said person during good behavior. The said court shall have authority by record entry to withhold execution of any judgment or sentence for such time as shall be reasonably necessary for an investigation with respect to suspension of sentence and probation. * * *.'

Section 789.2, The Code, provides in part:

'Judgment of conviction--time for. Upon a plea of guilty, verdict of guilty, or a special verdict upon which a judgment of conviction must be rendered, the court must fix a time for pronouncing judgment, which must be at least three days after the verdict is rendered, if the court remains in session so long * * *; but in no case can it be pronounced in less than six hours after the verdict is rendered, unless defendant consent thereto.'

Defendant argues that section 247.20 only authorizes the trial court to withhold execution of the sentence for a period of time reasonably necessary for a presentence investigation or an investigation concerning the suspension of a sentence already pronounced; this section does not permit the court to place a defendant on probation, without having first sentenced him, and then authorize 'an investigation with respect to suspension of sentence and probation.' He asserts the court thus violated section 247.20.

Defendant also maintains the court violated section 789.2 set out, supra. He argues although the order of February 6, 1969, purported to set the time of sentencing and judgment for March 1, 1970, this was not done because it was superseded by the court in granting defendant probation and later setting the terms and conditions thereof.

Defendant insists the court failed to ask him whether there was any legal cause why judgment should not have been pronounced against him on February 6, 1969, when he was placed on probation as is required by section 789.6, The Code. This section provides a defendant with the right of allocution. Its purpose is to elicit facts which would constitute reason for withholding sentence. State v. Mehuys, 172 N.W.2d 131, 135 (Iowa 1969).

Defendant's contentions that the court violated the provisions of chapter 789 are tenuous in view of the facts. What the court did in fact was to delay the imposition of any sentence and place defendant on probation pending sentence. Since sections 789.2 and 789.6 pertain only to the procedures to be followed in pronouncing judgment or sentence, the trial court need not have complied with these provisions when it ordered that defendant be placed on probation February 6, 1969. That order did not constitute a pronouncement of judgment and sentence. As aptly noted by the State, placing one on probation is not in any way a declaration of a sentence or judgment. Defendant was not sentenced for the crime to which he had plead guilty until October 7, 1970.

Defendant's argument that he was in effect sentenced and judgment was pronounced against him when the court entered its order of February 6, 1969, and resentenced October 7, 1970, for the crime of adultery is without merit.

The granting of probation is not the imposition of sentence nor its equivalent. Gahl v. People, 161 Colo. 535, 423 P.2d 332, 334; In re Williams' Petition, 145 Mont. 45, 399 P.2d 732, 736--739; Commonwealth ex rel. Paige v. Smith, 130 Pa.Super. 536, 198 A. 812, 813--815; Connor v. Commonwealth, 207 Va. 455, 150 S.E.2d 478, 480; State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90, 94. Parole arises after the end of the criminal prosecution, including imposition of sentence. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 31 L.Ed.2d 484. Although it has been said there is a basic difference between 'probation' and 'parole' in that probation relates to judicial action taken before the prison door is closed, whereas parole relates to executive or administrative action taken after the door has been closed on a convict, State v. Hewett, 270 N.C. 348, 351, 154 S.E.2d 476, 479, both follow conviction and imposition of sentence, Cole v. Holliday, 171 N.W.2d 603, 609 (Iowa 1969), unless otherwise explicitly authorized by statute.

II. The right to defer imposition of a sentence in a criminal case is not inherent but is regulated by statute and can only be exercised in accordance with the terms of the statute. As tending to support this principle see Pagano v. Bechly, 211 Iowa 1294, 1296, 232 N.W. 798, 799 and State v. Boston, 234 Iowa 1047, 1049--1050, 14 N.W.2d 676, 678.

This appears to be the general rule. Pete v. State, 379 P.2d 625 (Alaska 1963) (power to suspend sentences is not inherent in the judicial branch of government, but that power exists only when conferred upon the judiciary by the legislature); Peterson v. Flood, 84 Ariz. 256, 326 P.2d 845 (the power of a court to suspend sentence is not an inherent power but exists solely by virtue of statute and may be exercised only in accordance therewith); State v. Van Meter, 7 Ariz.App. 422, 440 P.2d 58, 64 (in accord with earlier statement); Fayad v. Superior Court, 153 Cal.App.2d 79, 313 P.2d 669 (authority of court to suspend imposition or execution of sentence in a criminal case and to place defendant on probation is wholly statutory, and statute furnishes and limits measure of authority which the court may exercise); State v. Eighth Jud. Dist. Ct. In & For County of Clark, 85 Nev. 485, 457 P.2d 217 (trial courts do not have inherent power to suspend imposition or execution of sentence and can order such suspension only as authorized by statute and such statutory power must be strictly construed); and State ex rel. Woodhouse v. Dore, 69 Wash.2d 64, 416 P.2d 670 (power of court to defer imposition of sentence in criminal case, as with the power to suspend sentence, must come expressly from the legislature).

Federal courts have been expressly authorized to suspend the imposition or execution of sentence and place a defendant on probation by the Probation Act, 18 U.S.C.A. section 3651 which provides in part:

'Suspension of sentence and probation. Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best...