Lee Lim v. Davis, Warden , 75 Utah 245 ( 1929 )

I do not agree that the prisoner be discharged. It is my opinion that he should be remanded to the warden, and the warden directed to deliver him to the sheriff of Salt Lake county, to abide the further order and judgment of the district court before whom he was duly and legally convicted.

I am fully aware of the general rule of law which prohibits courts from altering or reopening their own judgments for errors of law after the term during which the judgments were entered. Necessity requires that there shall be a limit of time during which judgments may be so questioned. But the rule has no proper application to cases like the one before us. When an accused person has been legally convicted of a criminal offense, and the court, through inadvertence or error, sentences him to an illegal or unauthorized punishment, it is repugnant to reason and a plain defeat of justice to discharge the convict. And the absurdity of such a proceeding is not lessened by the fact that the convict waits until after the term of court at which he was sentenced has expired to apply for his discharge upon habeas corpus.

In such circumstances there is ample warrant, both in precedent and principle, for correcting the error thereby granting full relief from the matter complained of. The prisoner here was convicted, on his own plea, of murder in the second degree. Of the validity of his conviction there is not the slightest question. He was erroneously or illegally sentenced to an indeterminate term in the state prison, instead of to a fixed and determinate term. Under the law he could have had the error corrected by timely application to the trial court or by appeal. He did neither, but remained silent for several years. Now he demands his unconditional release, because of the defect in his sentence.

The statute (Comp. Laws Utah 1917, § 2691) provides that, after the hearing upon the return of any writ of habeas corpus, the court or judge "shall dispose of the prisoner as justice may require." Under a similar federal statute the Supreme Court, of the United States, in the case of In re Bonner, 151 U.S. 242,14 S.Ct. 323, 327, 38 L.Ed. 149, said:

"The court is invested with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus," and that "it would seem that in the interest of justice, and to prevent its defeat, this court might well delay the discharge of the petitioner for such reasonable time as may be necessary to have him taken before the court where the judgment was rendered, that the defects, for want of jurisdiction, which are the subject of complaint, in that judgment, may be corrected."

While in this case the order was for the discharge of the prisoner without prejudice of the United States to take any lawful means to have the prisoner sentenced in accordance with law upon the verdict against him, it was plainly pointed out in the decision that the court that imposed the illegal sentence could reassume jurisdiction in order that the defect might be corrected and the court added that the object of judges "should be, not to turn loose upon society persons who have been justly convicted of criminal offenses, but, where the punishment imposed, in the mode, extent, or place of its execution, has exceeded the law, to have it corrected by calling the attention of the court to such excess. We do not perceive any departure from principle, or any denial of the petitioner's right, in adopting such a course." The Bonner Case was decided in 1894. Its reasoning has been followed in numerous subsequent cases. But instead of discharging the prisoner without prejudice to further proceedings, as was done in the Bonner Case, the later cases have uniformly ordered the prisoner detained until the sentence complained of could be corrected.

In Halderman's Case, 53 Pa. Super. 554, the prisoner was "remanded for resentence and that the record be remitted to the court below to the end that appropriate process may be issued to bring him into that court for such resentence in accordance with law." A later Pennsylvania case is Commonwealth ex rel. v.Ashe, 293 Pa. 18, 141 A. 723, wherein it is held that a prisoner who had served more than one year in penitentiary under illegal and void sentence would not be discharged on habeas corpus, but would be returned to trial court for resentence.

In Re Charles Harris, 68 Vt. 243, 35 A. 55, 56, the prisoner was "released from imprisonment in the state prison, and remanded to the custody of the sheriff of Caledonia county, who is authorized to detain him for sentence by the Caledonia county court," and his petition dismissed.

In Re Lewis, 51 Mont. 539, 154 P. 713, the court said that, while the petitioner was entitled to be discharged from the custody of the warden of the state prison, he was not entitled to go free, but must be committed to the custody of the sheriff to be by him brought before the district court for sentence and judgment in accordance with law.

In Ex parte Howard, 72 Kan. 273, 83 P. 1032, 1034, the judgment said:

"It is the judgment of this court that the sentence is void; but, the conviction being regular and valid, the petitioner ought not to be discharged. A valid judgment should be rendered, and the petitioner should be returned to the custody of the proper authorities for that purpose. If, however, this be not done within 20 days, the petitioner will be discharged from the warden's custody."

In Johnson v. State, 81 Fla. 783, 89 So. 114, the seventh headnote reads:

"Where an illegal sentence is rendered upon a plea of guilty, and the defendant seeks relief in habeas corpus proceedings, the petitioner may be remanded for a proper sentence, if the plea of guilty is predicated upon a sufficient charge under a valid statute."

In Hampton v. Orme, 92 Fla. 412, 109 So. 455, the Supreme court of Florida reversed an order of the circuit court discharging the prisoner because his sentence was invalid, and remanded the prisoner for a valid sentence.

In State ex rel. v. Reed, 138 Minn. 465, 163 N.W. 984,985, where the conviction was valid and the sentence void, the court ordered the prisoner delivered to the court where he was tried "for the imposition of a lawful sentence nunc pro tunc."

In Re Vitali, 153 Mich. 514, 116 N.W. 1066, 126 Am. St. Rep. 535, it was held that, where the trial court has imposed an illegal sentence, it has power to substitute for it a legal sentence, notwithstanding the illegal sentence has been partly executed, and that habeas corpus will not lie on the ground that there has been an illegal sentence if it is one that may be corrected by a new and legal sentence. The rule and practice is the same in California. Ex parte Lee, 177 Cal. 690, 171 P. 958;Ex parte Colford, 68 Cal.App. 308, 229 P. 63; Ex parteNichols, 82 Ca. App. 73, 255 P. 244.

In Bryant v. United States, 214 F. 51 (C.C.A. 8th Circuit) the court affirmed a corrected sentence made after the expiration of the term at which a defective sentence was imposed, and after habeas corpus proceedings had resulted in an order that the accused be conducted to the court where he had been tried there to abide the judgment and order of that court. In this case it is expressly held that the district court before whom the habeas corpus proceeding was tried properly prevented the prisoner from escaping further imprisonment by sending him back for a correction of the sentence, and further expressly held that the trial court had jurisdiction to impose a corrected sentence although the term at which he was convicted and sentenced had passed. See, also, Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283,68 L.Ed. 549.

In 29 C.J. 175 the rule is stated as follows:

"Where the conviction is valid, but the judgment and sentence is unauthorized, the prisoner will be remanded to the custody of the proper officer in order that further proceedings may be had according to law, or the discharge may be delayed for a reasonable time to permit of further proceedings."

To thus dispose of a prisoner does not deprive him of any right or offend against any legal principle. It merely limits the extent of his relief to the matters of which he complains. It does full justice to the prisoner and avoids gross injustice to the public. It is so appropriate to the situation and so generally approved by judicial opinion that its application here is imperative.