Smith v. State , 261 Ind. 510 ( 1974 )

Givan, J.^*

Appellant was charged by affidavit with the crime of carrying a pistol without a license. Upon a plea of guilty, appellant was sentenced to one year’s imprisonment and fined $200 and costs. The sentence was suspended and appellant placed on probation for one year. Within the probationary period the appellant was charged with having violated the terms of his probation in that he had been guilty of uttering a forged instrument. A hearing was had pursuant to IC 35-7-2-2, BURNS IND. ANN. STAT. (1973 Supp.), § 9-2211, which statute reads as follows:

“At the close of the probation period, or whenever directed to do so, by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereafter discharge the probationer from probation, or may extend the probation period, as shall seem advisable. At any time within the probation period, the probation officer may arrest the probationer only upon warrant issued by the sentencing court. Thereupon the probationer shall forthwith be taken before the court for hearing, where probationer may be represented by counsel of his choice. At any time within the maximum period for which the defendant might originally have been committed, but in no case to exceed five [5] years, the court may issue a warrant and cause the defendant to be arrested and brought before the court. If it shall appear that the defendant has violated the terms of his probation or has been found guilty of having committed another offense, the court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed.”

The trial judge found that appellant was in violation of his probation by reason of his conviction of uttering a forged instrument. Appellant’s probation was, therefore, revoked, and the prior judgment set aside. The court then under authority of the statute sentenced the appellant to imprisonment in the Indiana State Reformatory for a period of ten years.

Appellant first contends the trial court erred in setting aside its previous judgment and imposing a sentence of ten years. It is appellant’s argument that the above quoted statute is unconstitutional in that it deprived him of due process and a speedy trial and constituted double jeopardy.

With this we do not agree. The statute provides for a hearing at which the probationer may be represented by counsel. A determination is made as to whether or not cause exists for the revocation of the privilege previously extended. If a new judgment is imposed after the revocation of probation and the setting aside of the previous sentence, an appeal lies from that final judgment. Smith v. State (1973), 261 Ind. 509, 295 N. E. 2d 612, 36 Ind. Dec. 320. The statute in question affords the person who accepts probation all due process guaranteed by the Constitution of the United States and the Constitution of Indiana.

Appellant argues that to sentence him anew is in effect double jeopardy. This same argument has been used in situations where an appellant has been successful in obtaining a reversal of a conviction and then has argued that a second trial would amount to double jeopardy. In North Carolina v. Pearce (1969), 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656, the United States Supreme Court addressed itself to this problem and at page 723 stated:

“We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge js not constitutionally precluded in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Williams v. New York, 337 US 241, 245, 93 L Ed 1337, 1341, 69 S Ct 1079. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v New York, supra, that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ Id., at 247, 93 L Ed at 1342.”

The situation in the case at bar is analogous. The appellant for obvious reasons for his own benefit chose to accept probation under the terms set forth by the trial court and under the conditions set out in the pertinent statutes. When he violates the probation so afforded him, he cannot be heard to complain that the operation of the statute constitutes double jeopardy. For the same reasons we cannot accept appellant’s argument that he was denied a speedy trial by reason of the intervening period of probation.

In making this decision we are not unmindful of the decision of the Supreme Court of the United States in Roberts v. United States (1943), 320 U.S. 264, 88 L. Ed. 41, 64 S. Ct. 113, where a federal statute of very similar wording to the Indiana statute was interpreted by Justice Black to mean that a person receiving a suspended sentence may not be sentenced anew upon the revocation of the suspension and be given a term exceeding his original sentence.

Justice Frankfurter dissented in the Roberts case.

The majority does not feel bound by Justice Black’s decision in interpreting a similar federal statute. It is our thinking that the reasoning of Justice Frankfurter with whom Justice Reed concurred is much preferred when applied to the Indiana statutes and the cases which have previously interpreted that statute.

It should be pointed out that the majority opinion in the Roberts case implies that a sentencing judge under the statute has the choice of either rendering judgment by which the defendant is sentenced to a specific term or in withholding the passing of sentence and placing the defendant on probation with sentence to be passed at a later time. The Indiana Supreme Court has specifically ruled that to so withhold a sentence is a denial of the defendant’s constitutional rights under Article 1, Section 12 of the Indiana Constitution which provides that:

“Justice shall be administered freely, and without purchase ; completely, and without denial; speedily, and without delay.”

Taylor v. State (1954), 233 Ind. 398, 120 N. E. 2d 165. Thus this Court has held that under the Indiana statute a judge may not withhold sentence, but must, within a reasonable time, state the specific terms of the sentence. With this in mind, it would appear that if courts are to be encouraged to give suspended sentences, they must be given the latitude allowed within the plain wording of the statute to insure that a defendant accepting the terms of probation will do so with full realization of the gravity of the consequences of the violation of that probation.

If we were to hold today that a judge may not impose sentence greater than the sentence originally imposed at the time probation was accepted, we would leave trial judges with little recourse but to give the maximum time allowed by statute to every defendant to whom they intend to extend the privileges of a suspended sentence. Such a situation would severely damage the flexibility which the legislature obviously intended when the statute was passed.

The appellant has also raised a question on this appeal that the commitment issued by the Clerk of Marion County did not follow the judgment of the trial court in that the judgment of the trial court sentenced the appellant, who was at that time 24 years of age, to the Indiana Reformatory, but that the commitment ordered the appellant delivered to the Indiana State Prison. He also claims the commitment recites that there is a $200 fine imposed, whereas the judgment of the trial court does not impose such a fine. This matter was not called to the attention of the trial court by any pleading or in any manner revealed in this record. The appeal in this case lies from the judgment of the trial court and does not address itself to the commitment issued by the clerk of said court. However, this Court has on its own motion contacted the trial judge in this case and ascertained from said judge, who has furnished the clerk of this Court with a copy of his order therein, that the trial court has sua sponte ordered the correction of the commitment in this cause. We find no reversible error in this record.

The trial court is, therefore, affirmed.

Arterburn, C.J., and Hunter and Prentice, JJ., concur; DeBruler, J., dissents with opinion.

* This ease has been before this Court previously on appellee’s motion to dismiss. See Smith v. State (1973), 261 Ind. 509, 295 N. E 2d 612, 36 Ind. Dec. 320. This case was assigned to the writer of this opinion on July 11, 1973.