State v. Lee Lim , 79 Utah 68 ( 1932 )

In my opinion, the law announced by this court in Re Flint,25 Utah 338, 71 P. 531, 95 Am. St. Rep. 853, and followed in the case of Mackelprang v. Walker, 74 Utah 121, 277 P. 401, is controlling in this case. The facts in the Flint Case are thus stated in the opinion:

"On the 25th day of February, 1902, the defendant in this case was duly convicted in the Second judicial district court of this state of the crime of forgery. The court made an order directing the defendant to appear March 5, 1902, for sentence. The case was again continued, and March 12, 1902, was fixed as the time for pronouncing judgment. The defendant appeared for sentence on the last-mentioned date, and the court, on its own motion, made and entered the following order: `The defendant having been convicted of the crime of forgery, and being now before the court to receive sentence, and the court being sufficiently advised, it is ordered that sentence be, and the same is hereby, suspended, and the defendant permitted to go upon his own recognizance.' The defendant, by this order, was, in effect, discharged from custody. On the 5th day of December, 1902, the judge before whom the defendant was tried and convicted made and entered the following order in the case: `On motion of A.B. Hayes, Esq., district attorney, it is ordered that said defendant appear before the court for sentence on Monday, January 5, 1903.' On January 5, 1903, the time for fixing sentence was continued until January 12, 1903, on which date the defendant appeared in court, and duly objected to any further proceedings in the premises on the ground that the court had no jurisdiction of the person of the defendant. The court overruled the objection, and sentenced the defendant to the state prison for a term of one year, and made an order duly committing him to the proper officers, with directions that the judgment be enforced."

Lee Lim was sentenced on October 13, 1926, to an indeterminate term in the state prison after he had entered a plea of guilty to a charge of murder in the second degree. On October 15, 1926, he was delivered to the warden of the state prison of Utah, where he remained confined until, on habeas corpus proceedings, he was ordered discharged by an opinion of this court filed on December 31, 1929. After he was discharged and released, a warrant of arrest was issued out of the district court of Salt Lake county, and he was arrested. On February 1, 1930, he was brought before the district court of Salt Lake county. The state requested that a time be fixed for passing sentence. The defendant through his counsel resisted the passing of sentence upon the ground that the court had lost jurisdiction. The objection was overruled. On February 15, 1930, the district court sentenced the defendant to serve ten years in the state prison of Utah, the period to begin as of October 13, 1926.

It will readily be noted that the facts in the Flint Case and the facts in the instant case are in several respects quite unlike, but it does not follow that the Flint Case is not a precedent, and, as such, controlling in this case. The test of whether a prior case is a precedent in a subsequent case must be determined from a comparison, consideration, and a determination of whether or not the underlying principles of law of the two cases are the same, and not from a superficial comparison of the facts in the two cases. The pertinent inquiry here presented is, "Why had the court jurisdiction to resentence Lim when it did not have jurisdiction to sentence Flint? If the time which elapsed between the verdict or plea of guilty and the imposing of sentence is of importance in determining the question of whether the court did, or did not, have jurisdiction to impose the sentence here complained of, then clearly there is greater reason for holding that the court was without jurisdiction to sentence Lim than there was in holding that the court was without jurisdiction to sentence Flint. Approximately three years and four months elapsed between the time that Lee Lim entered his plea of guilty and the time that the sentence here involved was imposed upon him. Approximately ten and one-half months elapsed between the time that Richard Flint was found guilty and the date when the sentence, which this court held to be a nullity because the court had lost jurisdiction, was imposed upon him. If prejudice, sustained by a delay in imposing sentence, is to be of controlling importance, one who is merely held in suspense and uncertainty for a period of ten and one-half months, as in the Flint Case, has less cause to complain than does one who is imprisoned for three years and four months, as in the case of Lim.

It is said in the prevailing opinion that we need not consider whether it was proper for the trial court to fix the commencement of the term that the defendant should serve as October 13, 1926, the day the void sentence was pronounced, because "the defendant is not complaining of this part of the sentence, and indeed it is as favorable to him as he could hope for. Neither has the state complained of this feature of the sentence." If it be assumed that the trial court had jurisdiction to impose a sentence upon Lim, then the sentence imposed was "as favorable to him as he could hope for," but, if the court was without jurisdiction to impose any term of imprisonment on the defendant, then, and in such case, he had a right to hope for and receive a more favorable result, viz.: a discharge. Nor does the fact that the state is not complaining affect the question of whether the trial court did or did not have jurisdiction to impose the sentence here under review. If the trial court was without jurisdiction to pronounce any sentence upon the defendant, the failure of the state to complain of the sentence imposed cannot be said to confer such jurisdiction. It is by no means clear, as is apparently assumed in the prevailing opinion, that the legal effect of the sentence here under review entitles Lim to credit for the time he served under the void sentence. Comp. Laws Utah 1917, § 8531, provides that "the term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant at the place of imprisonment. * * *" The law applicable generally to the commencement and duration of imprisonment under a sentence is thus stated in 16 C.J. p. 1304:

"As a rule, the duration of imprisonment must be stated clearly and definitely, although it has been held that, where the period of imprisonment is definitely fixed by statute such period need not be specified in the sentence. As a general rule, the time for imprisonment to commence or to be inflicted is no part of the judgment or sentence proper, and according to the weight of authority, in the absence of a statute requiring it, the time when the imprisonment is to begin or end need not be specified in the sentence, it being sufficient to state merely its duration."

If the time fixed by the trial court for the sentence of the defendant to begin be regarded as no part of the sentence, and if the sentence "commences to run only upon the actual delivery of the defendant at the place of imprisonment," it is difficult to see how Lim may avail himself of any deduction for the term served under the void sentence. Assuming, however, that Lim may take advantage of the deduction attempted to be given him by the sentence here under review, still he had no legal right to have the time which he served under the void sentence deducted from the time which he may have been required to serve under the present sentence. The law applicable in such a case as this is thus stated in 16 C.J. p. 1373:

"Where defendant is confined in the penitentiary under a void or erroneous sentence because of his failure to obtain a suspension of his sentence during the pendency of proceedings in error, it is in no sense a part execution of a legal sentence, and by the rendition and execution of a legal judgment he is not punished twice for the same offense.

"A person released under a writ of habeas corpus after having served a part of a sentence of imprisonment imposed under a void indictment is not entitled to have the time so served credited on a sentence subsequently imposed under a valid indictment."

The following cases support the view that time served under a void sentence is no part of, and may not be deducted from, time served under a subsequent valid sentence. Ex parte Gunter,193 Ala. 496, 69 So. 442; McCormick v. State, 71 Nev. 505, 99 N.W. 237; Ogle v. State, 43 Tex.Crim. R., 63 S.W. 1009, 96 Am. St. Rep. 860, 15 Am. Cr. Rep. 321. The great weight of judicial authority is to the effect that, in the absence of statutory provisions to the contrary, there is no legal authority for a court to deduct time served under a void sentence from the time to be served under a subsequent sentence.

When the defendant in this case was taken before the district court on February 15, 1930, for sentence, the case there stood against him on his plea of guilty, which was entered in October, 1926. The fact that the learned trial judge fixed the period of defendant's imprisonment to begin as of October 13, 1926, does not alter the case. That the trial court could properly have fixed the time of the beginning of the sentence here under review as of the date that the sentence was imposed is clear. That it was error to fix (assuming that the legal effect of the sentence does fix) the time that the defendant must serve to begin on October 13, 1926 (the date of the void sentence), would seem equally clear. If Lim was without right to have the time he served under the void sentence deducted from the sentence in question, then it would seem to necessarily follow that the court below was in error in making such deduction. The granting or refusing to grant a deduction for time served under a void sentence is purely a question of law, and may not well be said to be a question which merely appeals to the discretion of the court. If the court below had authority to either deduct, or refuse to deduct, the time which Lim served under the void sentence from the time that he should serve under the sentence here in question, nevertheless the fact remains that the delay of the court in imposing a valid sentence was prejudicial to him. There still remained the hazard that he would be compelled to serve full time without any deduction for the time served under the void sentence. Such a hazard is certainly as great a cause for complaint by Lim as was the suspense and uncertainty which Flint sustained because of the delay in imposing sentence upon him. By granting the defendant Lim credit for time served under the void sentence, it would seem that the sentence under review of necessity recognized the validity of the prior sentence to the extent of the time actually served. The defendant thus is placed in a position analogous, if not identical, to that of one who has served the valid part of a sentence which is in part void. It is quite generally, if not uniformly, held to be the law that, where a court imposes a sentence, part of which is valid and part of which is void, such court is without jurisdiction to amend the sentence so imposed after the defendant has entered upon the execution of the valid part. If a person is once legally punished for a crime, he may not again be punished for the same crime. To hold otherwise would be to disregard both our state and Federal Constitution, which directs that no man can be twice lawfully punished for the same offense. A number of cases so holding are cited in the prevailing opinion, among them Ex parte Lange, 18 Wall. (85 U.S.) 163, 21 L.Ed. 872.

If the trial court had erroneously sentenced Lee Lim to serve three years and four months in the state prison, and if he had served the whole of such sentence, he would have been entitled to a discharge, and, under the authorities, the trial court would be without jurisdiction to impose additional punishment. In the supposed case there would be the same miscarriage of justice that the prevailing opinion suggests would follow a discharge of the defendant in this case, and yet the court in the supposed case would be powerless to do anything in the premises. As a matter of evenhanded justice, the defendant in the supposed case is entitled to no better treatment at the hands of the state than is the defendant in the instant case. In the supposed case as in this case the fault lies with those whose duty it is to enforce and administer the law. If either the state or the defendant must suffer because of such fault, it should be the state and not the defendant. The miscarriage of justice that would follow from the immediate discharge of the defendant resulting in his serving two years and six months less than the term which he should serve under his sentence of ten years (assuming his behavior while imprisoned is such as to entitle him to the benefits of section 4331, Comp. Laws Utah 1917) is not cured or rendered any the less a miscarriage of justice by taking the other horn of the dilemma and thus require him to serve three years and four months more than the term for which he was sentenced.

A sentence or judgment may be void, and as such open to attack either collaterally or directly. It may be valid and thus not vulnerable to attack either collaterally or directly. It may be voidable or erroneous, so that it cannot withstand a direct attack but can withstand a collateral attack. The authorities generally recognize these three classes of judgments or sentences, and none other. The sentence under review, in order to escape the injustice of requiring the defendant to serve three years and four months in the state prison without a deduction therefor, seems to proceed upon the theory that the original sentence had some legal existence, apparently that of being voidable or erroneous. Having thus, to that extent, protected the defendant, the sentence then seems to proceed upon the theory that the original sentence was void, and therefore the court had jurisdiction to impose another sentence. It is one of the characteristics of our system of jurisprudence that fundamental principles of law may not be disregarded in order that the exigencies of a given case may be met. An adherence to such principles is necessary to the orderly administration of the law. Courts refuse to recognize a hybrid sentence which for one purpose is voidable or erroneous and for another purpose is void. A sentence cannot be wholly void and at the same time be merely erroneous or voidable. The fact that a sentence is void precludes it from being voidable or valid.

In the habeas corpus proceeding the original sentence imposed upon Lim was held to be void. As such, it has no existence in contemplation of law. Upon principle I am unable to perceive how a void sentence may serve the purpose of indefinitely enabling a court to retain jurisdiction to impose a valid sentence when, as in the Flint Case, the court lost jurisdiction to impose any sentence because it ordered that sentence be "suspended and the defendant permitted to go upon his recognizance."

It is said in the prevailing opinion that in the Flint Case "the trial court reached the conclusion that the defendant should not be made to suffer for his crime the punishment provided by statute, at least not presently or during good behavior, and thereupon suspended the imposition of sentence and discharged the defendant." The order in the Flint Case was that "the defendant having been convicted of the crime of forgery, and being now before the court to receive sentence, and the court being sufficiently advised, it is ordered that sentence be, and the same is hereby, suspended, and the defendant permitted to go upon his own recognizance." As I understand the language just quoted, it does not justify the statement that the trial court reached the conclusion that the defendant should not be made to suffer for his own crime or that the trial court intended to permanently discharge the defendant. The fact that the trial court later attempted to impose a sentence upon the defendant would tend to indicate that all the trial court intended to do was to temporarily suspend sentence. When the original sentence was imposed upon the defendant in the instant case, there can be no doubt but the trial court intended to place him beyond its jurisdiction. The sheriff was ordered to deliver the defendant to the warden of the state prison. So far as the trial court was concerned, the case against Lee Lim was a closed book as soon as Lim was delivered to the warden of the state prison. Those who are confined in the state prison are in no sense within the jurisdiction of the various courts which sentenced them. On the contrary, they are within the exclusive jurisdiction of those whose duty it is to administer the affairs of that institution. Nor can it be said that a delay of three years and four months is a reasonable delay between the plea of guilty and the imposition of the sentence in the instant case, and that a delay of ten and one-half months between the verdict of guilty and the imposition of sentence was an unreasonable delay in the Flint Case. I can perceive of no just or reasonable excuse for holding that the court retained jurisdiction of the defendant in this case for the purpose of imposing sentence upon him and at the same time adhering to the rule announced by this Court in the Flint Case. From whatever angle this case is viewed, the only conclusion permissible in the light of the law announced in the Flint Case is that the trial court was without jurisdiction to impose the sentence here complained of. There are cases which reach a different result, and there were such cases at the time the Flint Case was decided. In addition to the cases cited in the prevailing opinion and in the dissenting opinion of Mr. Justice Straup herein, a list of cases dealing with the question here presented will be found collected in the case of Mackelprang v.Walker, supra. It may be that the court, as at present constituted, would have reached a different result had they participated in the Flint Case, but, unless we are thoroughly convinced that the Flint Case is wrong, I think we should follow the law as there announced. The construction placed upon a statute by a court should not be rejected merely to conform to the views of a changed personnel of the court.

Our Code of Criminal Procedure, title 120, chap. 37, Laws of Utah 1917 (section 9041 et seq.), fixes the time within which a court shall pronounce judgment after a plea or verdict of guilty. Since the Flint Case was decided, February 13, 1903, Legislatures have come and gone, but no amendment has been made in the statute with respect to the time within which the court shall pronounce judgment after a plea or verdict of guilty. This is not a case where the court exercised, or attempted to exercise, the power to suspend sentence as provided for in chapter 74, Laws of Utah 1923. The Legislature is apparently satisfied with the construction of the statute relating to the time when judgment or sentence shall be imposed in a criminal case as announced in the Flint Case, and therefore, as I think, this court should be content with such construction.

I am of the opinion that the judgment and sentence appealed from should be reversed, and the defendant discharged.