Wilson v. Bennett
| Decision Date | 08 February 1961 |
| Docket Number | No. 50135,50135 |
| Citation | 107 N.W.2d 435,252 Iowa 601 |
| Parties | Sylvester WILSON, Appellant, v. John E. BENNETT, Warden, Iowa State Penitentiary, Appellee. |
| Court | Iowa Supreme Court |
Sylvester Wilson, pro se.
Norman A. Erbe, Atty. Gen., Marion R. Neely, Asst. Atty. Gen., and George E. Wright, Asst. Atty. Gen., for appellee.
The question presented is now moot.
Petitioner was convicted, on a plea of guilty, of a violation of The Uniform Narcotic Drug Act (second offense) as defined in chapter 204, Code of Iowa 1954, I.C.A., on the 11th of July, 1957, in the Polk District Court. He was sentenced to serve not less than five years nor more than ten years in the State Penitentiary.
On May 28, 1960, after our decision in Masteller v. Board of Control of State Institutions, Iowa, 100 N.W.2d 111, petitioner filed his petition for a writ of habeas corpus alleging his sentence of not less than five years or more than ten years is an indeterminate sentence and inapplicable to violations for which penalties are provided in section 204.22 and when such a sentence is erroneously imposed no more than the minimum term is valid. He also alleges that, deducting allowance earned for diminution of sentence, his lawful term of five years had expired on May 26, 1960, and that further imprisonment is illegal and contrary to the due process and equal protection of the laws clause of U.S.Const. Amend. XIV, § 1.
The trial court upon examination of the petition denied a hearing and ordered the petitioner returned to the Polk District Court for correction of his sentence. On June 11, 1960, petitioner was so returned and resentenced by the Polk District Court for a term of eight years made retroactive to the date of the original date of sentence, July 11, 1957. This resentencing has been appealed to us, Case No. 50148, State v. Wilson, on a clerk's transcript, and affirmed November 15, 1960, and now appears in 105 N.W.2d 926. The facts stated in this paragraph, except the citation, appear of record in this court in said Case No. 50148 and we take judicial notice thereof. Howell v. Bennett, Iowa, 103 N.W.2d 94.
The order of the trial court is correct.
The appellant was convicted in a court of competent jurisdiction. The irregularity or error, which could have been corrected on appeal, appeared in the sentence. The appellant is only entitled to a proper sentence, not that the conviction be set aside or a lesser sentence.
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...the proper court for a proper sentence where the court has the power to sentence but not to enter the sentence imposed. Wilson v. Bennett, 252 Iowa 601, 107 N.W.2d 435; and Cummings v. Lainson, 239 Iowa 1193, 33 N.W.2d 395. See also Cummings v. Bennett, 324 F.2d 1 (8th In this case the info......
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...1016, 1021, 141 N.W.2d 576, 579 (1966), and citations. Procedure in the Wiese case is remarkably analogous to that in Wilson v. Bennett, 252 Iowa 601, 107 N.W.2d 435 (1961). The original criminal cases were the proper forums for entry of new Since the former appeals did not adjudicate the l......
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