Waltman v. Austin

• Decision Date: 11 May 1966
• Docket Number: Cr. 338
• Citation: 142 N.W.2d 517
• Parties: Thomas J. WALTMAN, Petitioner, v. W. J. AUSTIN, Judge of the Burleigh County Court With Increased Jurisdiction, Respondent.
• Court: North Dakota Supreme Court

Page 517

142 N.W.2d 517

Thomas J. WALTMAN, Petitioner, v. W. J. AUSTIN, Judge of the Burleigh County Court With Increased Jurisdiction, Respondent.

Cr. 338.

Supreme Court of North Dakota.

May 11, 1966.

Syllabus by the Court

1. Section 12--51--07, N.D.C.C., as amended, permits commitment of law violators to the state farm in certain instances and is not an alternative penalty statute prescribing limits of punishment for all crimes.

2. A sentence by a court having jurisdiction of the person and the offense committing a person to an authorized penal institution but for a term in excess of what the law permits is not void as to the period of lawful imposition, but void only as to the excess beyond that which could have been lawfully imposed.

3. Where an inferior court imposes a sentence in excess of what the law permits, it exceeds its jurisdiction when it imposes that part of the sentence in excess of the statutory maximum, and where it appears a very short time remains of the lawful sentence it is deemed necessary, to prevent a miscarriage of justice, that the supreme court in an original certiorari proceeding should reduce the sentence to the statutory maximum.

4. The imposition by a court, having jurisdiction of the person and of the offense, of a sentence in excess of that permitted by statute for a particular offense, constitutes an act in excess of jurisdiction, and writ of certiorari is a proper remedy, in such case, to correct said sentence by reducing it to the statutory maximum.

Fleck, Smith, Mather, Strutz, Mayer & Stewart, Bismarck, for petitioner.

Gerald B. Glaser, Asst. State's Atty., Burleigh County, Bismarck, for respondent.

MURRAY, Judge.

This is a proceeding on a writ of certiorari to review a sentence imposed by a Judge in the County Court with Increased Jurisdiction after a plea of guilty to a charge of issuing a check without sufficient funds contrary to the provisions of Section 6--08--16, N.D.C.C., as amended by Chapter 110 of the Session Laws of 1961.

The above statute provides the penalty to be imposed. It states the defendant 'shall be punished by a fine of not less than ten dollars, and not more than one hundred dollars, or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment.' The petitioner in this case was sentenced to the state farm for a term of six months, to pay a fine of fifty dollars, and costs were taxed in the amount of fifty dollars.

The petitioner moved in the county court with increased jurisdiction to vacate the sentence on the grounds that it is void for the reason that it is in excess of that authorized by law. The motion was denied, whereupon the instant proceeding in certiorari was brought in this court.

In accordance with the writ, the pertinent records have been certified to this court. The petitioner is presently confined pursuant to the conviction and sentence.

The proceeding being one for certiorari, the scope of review is limited by statute. Section 32--33--01, N.D.C.C., provides:

'A writ of certiorari shall be granted by the supreme court * * * when an * * * inferior court has exceeded the jurisdiction of such * * * inferior court, * * * and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court It is deemed necessary to prevent miscarriage of justice.' (Emphasis supplied.)

There is no dispute in the facts, and the first question confronting us is whether the court had authority to sentence the petitioner to six months at the state farm for the crime charged.

The justification for the six months' sentence imposed is premised on Section 12--51--07, N.D.C.C., as amended. It provides as follows:

'The judges of the district courts, and of the county courts with increased jurisdiction, may commit to the state farm, so far as the capacity of the farm shall permit, all male persons who otherwise would be committed to the county jail or to the penitentiary for violation of any criminal law of this state, where the sentence is not less than thirty days nor more than one year provided that no person shall be committed to the state farm who:

'1. Has at any time been convicted of a sexual offense; or

'2. Has served a sentence or portion thereof in a penitentiary upon conviction of a felony; or

3. Has a history of moral or sexual degeneration.

A person committed to the state farm shall not be deemed to have been convicted of a felony, but shall be deemed to have been convicted of a misdemeanor.'

It is contended this is a general penalty statute that provides an alternative punishment for the violation of any criminal law of this state. This argument is premised on the use of the word 'sentence' as distinguished from 'penalty' and that it refers to 'persons who otherwise would be committed to the county jail or to the penitentiary for violation of any criminal law of this state.'

We cannot agree with this interpretation. The language of Section 12--51--07, supra, is clear. It provides that the named judges 'may commit to the state farm, * * * all male persons who otherwise would be committed to the county jail or to the penitentiary for violation of any criminal law of this state, where the sentence (imposed) is not less than thirty days nor more than one year * * *.' This construction is made explicitly clear when we consult Black's Law Dictionary, 4th Ed., where the word 'sentence' is defined as follows:

'The judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, awarding the punishment to be inflicted. Judgment formally declaring to accused legal consequences of guilt which he has confessed or of which he has been convicted. The word is properly confined to this meaning.'

See also Volume 38, Words and Phrases, permanent edition, where the word 'sentence' has been defined by many courts as the judgment of the court in criminal cases.

We find upon examination of our statutes on criminal law that the word 'sentence' is used in this sense many times. Section 12--06--04, N.D.C.C., provides that upon a legal conviction a duty devolves upon the court 'authorized to pass sentence' to determine and impose the punishment. Section 12--06--07, N.D.C.C., allows discretion to 'the court imposing the sentence' to refrain from 'imposing sentence' for a definite term but may impose an 'indeterminate sentence' and the person 'so sentenced,' etc. Section 12--06--24 provides that when any person is convicted of two or more crimes 'before sentence has been pronounced' the imprisonment 'to which he is sentenced' upon the second or subsequent conviction may be made to run consecutively or concurrently with the first. Section 12--06--27 provides that 'A sentence of imprisonment in the penitentiary' under certain circumstances suspends a defendant's civil rights. And Section 12--06--30 provides in certain cases prisoners may be employed while on parole after being 'convicted of a misdemeanor and sentenced to the county jail.'

It is clear to us that the term 'sentence' as used in the statute in question and in our criminal law refers to the judgment of the court formally pronounced awarding punishment to be inflicted. We hold that Section 12--51--07, as amended, is not a penalty statute. The statute merely provides another institution wherein offenders may be committed to serve the sentence imposed.

Having determined that Section 12--51--07, as amended, supra, is not a penalty statute, we must now determine whether the sentence imposed is void, or merely excessive.

The crime charged is punishable by imprisonment in the county jail for not more than thirty days. Thus, it is a crime for which one may be committed to the state farm in lieu of the county jail, provided the sentence imposed is not less than thirty days, the defendant has not previously been convicted of a sexual offense, has not served a sentence or a portion thereof in a penitentiary upon conviction of a felony, or does not have a history of moral or sexual degeneration. The record before us does not establish any of these disqualifications and we must assume, in view of the fact that he was sentenced to the state farm, they do not exist.

The petitioner maintains the entire sentence is void as there is no real, valid portion separate therefrom. This argument is premised on the fact that the defendant was sentenced to a certain number of months, whereas the statute authorizes a permissible penalty in days. He argues the only divisible portion of a six months' sentence is a month, and that months may have anywhere from twenty-eight to thirty-one days. No authority is cited by petitioner in support of this argument and we have found none. We do not believe it has merit.

In State v. Ziesemer, N.D., 93 N.W.2d 803, we held where a sentence is imposed in excess of statutory limitations, it is lawful to the extent of the statutory maximum. We said, in the syllabus,

'Where a sentence has been imposed in excess of that provided by statute the sentence is lawful to the extent of the statutory maximum and a person in custody under such a sentence cannot be discharged on habeas corpus until the expiration of the time for which he could have been lawfully sentenced.'

Sentence was imposed March 29, 1966, to commence April 12, 1966. Thirty days have not expired from the commencement of the sentence. The trial court had jurisdiction of the person and of the offense. The imposition, by mistake or otherwise, of a sentence in excess of what the law permits does not render the sentence void Ab initio because of the excess, but is good insofar as the power of the court extends. Ex parte Moore, 71 N.D. 274, 300 N.W. 37; State v. Ziesemer, supra. See Wharton's Criminal Procedure, Sec. 2239, p. 479; 24 C.J.S. Criminal Law § 1584; 21 Am.Jur.2d, Criminal Law, Sec. 536.

To the extent that the sentence of the court purports...