Watford v. State, 1277S805
| Citation | 270 Ind. 262,384 N.E.2d 1030 |
| Decision Date | 29 January 1979 |
| Docket Number | No. 1277S805,1277S805 |
| Parties | Gaulton Lee WATFORD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
Harriette Bailey Conn, Public Defender of Indiana, R. Davy Eaglesfield, III, Special Deputy Public Defender, Kenneth Stroud, Sp. Asst. Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen. of Ind., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of kidnapping, Ind.Code § 35-1-55-1 (Burns 1975), in a trial by jury. He was sentenced to life imprisonment on June 21, 1967, and on April 3, 1978 was granted permission to file a belated appeal pursuant to Post Conviction Remedy Rule 2, which appeal presents the following issues for our review:
(1) Whether the trial court erred in denying the defendant's motion to correct his sentence and discharge him from custody.
(2) Whether the trial court erred in entering judgment against the defendant upon the verdict of guilty, in light of his co-defendant's acquittal at the same trial.
On May 19, 1978, the defendant filed a motion for the correction of his sentence and for discharge from custody alleging in part the following:
To paraphrase the above quoted portion of the motion, by legislative enactment that became effective subsequent to the defendant's sentencing but prior to the initiating of his appeal, the Criminal Code of Indiana It is Defendant's position that he is entitled to be sentenced under the provisions of the Criminal Confinement statute rather than under the provisions of the repealed Kidnapping statute.
was revised. By such revision the conduct, which had previously constituted the crime of kidnapping, thereafter constituted the crime of Criminal Confinement and carried a sentence substantially less severe than the life sentence imposed by the kidnapping statute, under which the defendant had been charged, convicted and sentenced.
The defendant recognizes that Indiana's general savings clause, Ind.Code § 1-1-5-1 (Burns 1975) 1 provides that, in the absence of an express provision for retroactivity a statutory revision does not apply to any act committed prior to its effective date. He argues, however, that the savings clause was enacted to determine the legislative intent only when no contrary intent is expressed or implied by the repealing or amending act in question. He further argues, that in the instant case it is obvious that the Legislature clearly intended to ameliorate the excessive punishment previously provided for the criminal acts when they passed the Criminal Confinement statute, Ind.Code § 35-42-3-3 (Burns Supp. 1978). Given the ameliorative intent, he contends that the application of the revised statute should not be restricted solely to offenses committed after the statute's effective date, October 1, 1977.
In support of his position the defendant cites Maynard v. State, (1977) Ind.App., 367 N.E.2d 5. In Maynard, the Court of Appeals vacated the defendant's sentence for delivery of a controlled substance, and re-sentenced him under an amended statute which had become effective after the crime had been committed but prior to the defendant's trial and sentencing. The court stated at p. 8:
"If there is an express statement by the legislature that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the proscribed act, then to hold that the more severe penalty should apply would serve no purpose other than to satisfy a constitutionally impermissible desire for vindictive justice. We could not ascribe to the legislature an intent to punish for vindictive purposes. Wolfe v. State, (1977) Ind.App., 362 N.E.2d 188, 190.
Defendant's position is of questionable merit in view of the express savings clause found in the Revised Criminal Code, Acts 1977, Public Law 340, § 150, 2 and we need not here pass upon his contention that sentencing under the prior statute, following an ameliorative amendment effective between the commission of the offense and the sentencing, is constitutionally impermissible under Article I, § 18 of the Constitution of Indiana, because he was sentenced prior thereto, and, as hereinafter held, said sentencing was a final judgment.
The defendant seeks to have Maynard extended beyond its scope, to cover a situation where the statute had become effective prior to the time that his judgment became final. In defining "final judgment," the defendant cites cases from several jurisdictions which hold that a judgment of conviction Although it appears that Maynard is in accord with the defendant's cited authority upon the issue of whether a defendant may take advantage of an ameliorative statutory change prior to final judgment, Indiana is not in accord with the holdings of those cases with respect to the question of when a judgment becomes final. In Indiana a judgment becomes final prior to the taking of an appeal. As was stated in Bozovichar v. State, (1951) 230 Ind. 358, 362, 103 N.E.2d 680, 681:
is not final as long as the case is pending on appeal, and that, where the defendant has not yet exhausted his appeal rights, he is entitled to the benefit of the statutory ameliorative change. State v. Macarelli, (1977 R.I.) 375 A.2d 944; People v. Rossi, (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313; People v. Thomas, (1974) 185 Colo. 395, 525 P.2d 1136; State v. Pardon, (1967) 272 N.C. 72, 157 S.E.2d 698; In re Estrada, (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948. The holdings in these cases were premised upon common law theories and interpretations of their own statutes and savings clauses.
Since the defendant's judgment had been final for over ten years prior to the effective date of the revised statute, he can not now seek to take advantage of its ameliorative sentencing provisions.
The defendant was jointly tried with co-defendants Norah Watson and Ceaphus Williamson on a charge of...
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