Wisden v. District Court of Sevier County, 20331
| Decision Date | 06 December 1984 |
| Docket Number | No. 20331,20331 |
| Citation | 694 P.2d 605 |
| Parties | Joseph M. WISDEN and Don H. Wisden, Plaintiffs, v. The DISTRICT COURT OF SEVIER COUNTY, State of Utah, Defendant. |
| Court | Utah Supreme Court |
Marcus Taylor, Richfield, for plaintiffs.
D. Michael Jorgensen, Salina, for defendant.
Plaintiff Joseph M. Wisden was convicted in the Justice Court of Salina City, Sevier County, of five Class B misdemeanors. Joseph was sentenced to six months in the county jail on each of the first two counts, which sentence was stayed upon his serving 14 days in the county jail on these counts, and he was placed on probation for 30 days. Joseph was fined a total of $678.
Plaintiff Don H. Wisden was convicted of one Class B misdemeanor arising out of the same incident as that of his brother and was sentenced to six months in the county jail, with a minimum of seven days of service. He was fined $299.
Plaintiffs appealed their respective convictions to the district court of Sevier County and were provided trials de novo in that court. 1 Both were again convicted of the same offenses. The district court, however, sentenced Joseph M. Wisden to six months in the county jail on each of the five counts, three of which are to run consecutively; the other to run concurrently. Don H. Wisden was sentenced to serve six months in the county jail.
Plaintiffs seek extraordinary relief in this Court pursuant to Rule 65B, Utah R.Civ.P. Specifically, they seek an order compelling the district court to vacate its sentences and to resentence plaintiffs no more severely than the sentence imposed previously by the justice of the peace. Plaintiffs also pray for an order releasing them from incarceration pending adjudication of this matter.
U.C.A., 1953, § 76-3-405 provides that the sentence imposed after retrial shall not be more severe than the original sentence when the first conviction is set aside on direct or collateral attack. In State v. Sorensen, Utah, 639 P.2d 179 (1981), we interpreted this statute to mean that no new element of sentence can be added on retrial; that no element may be augmented, and that the statute precludes justifying an increase in one element of sentence by elimination of another. As the time commitment in plaintiffs' sentences was increased by the district court, though the fines were eliminated, the district court sentences were contrary to section 76-3-405 and were invalid as impairing plaintiffs' constitutional rights to appeal. See State v. Sorensen, supra; Chess v. Smith, Utah, 617 P.2d 341 (1980).
Because a justice of the peace court in this state is not a court of record, an appeal from that court is by way of a trial de novo in the district court, rather than a review of the justice's rulings. The district court judge, sitting as a trial judge, may have reasoned that section 76-3-405 did not apply, since the first conviction was not "set aside on direct review or on collateral attack." 2
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Dunn v. Cook, 880067
...Code Ann. § 76-3-405 prohibits imposition of a new sentence that is more severe than the prior sentence. 2 Wisden v. District Ct. of Sevier County, 694 P.2d 605, 606 (Utah 1984); State v. Sorensen, 639 P.2d 179, 180-81 (Utah 1981); Chess v. Smith, 617 P.2d 341, 343 (Utah 1980). See Bullingt......
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Lucero v. Kennard, 20020984-CA.
...from that court is by way of a trial de novo in the district court, rather than a review of the justice's rulings." Wisden v. District Ct., 694 P.2d 605, 606 (Utah 1984). ¶ 19 Because it acts "as if there had been no trial in the first instance," Black's Law Dictionary 1512 (7th ed. deluxe ......
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...court cannot impose a greater sentence than that of the justice court. See Utah Code § 76-3-405(1) ; Wisden v. Dist. Ct. of Sevier Cnty. , 694 P.2d 605, 606 (Utah 1984) (per curiam) (holding that Utah Code section 76-3-405(1) applies to appeals from justice court convictions). However, this......
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...defendant on a charge for which he has previously been acquitted. ¶ 12 Such a result is also necessitated by Wisden v. District Court, 694 P.2d 605, 606 (Utah 1984) (per curiam). The Wisden court concluded that Utah Code section 76-3-405(1) applied to justice court defendants. See id. This ......