Summary
In Neal, the trial court deferred imposition of sentence in one case until another pending indictment against the defendant in the same court was resolved.
Summary of this case from State v. TaylorOpinion
No. 38054
Decided September 25, 1963.
Habeas corpus — Double jeopardy not ground for relief — Delay in pronouncing sentence.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. Petitioner, Lawrence Neal, on May 28, 1953, was indicted by the Grand Jury of Clark County, the indictment containing two counts. The first count charged petitioner with breaking and entering an inhabited dwelling in the night season with intent to commit larceny, and the second count charged forcible rape. Petitioner, while represented by counsel, was tried to a jury on this indictment and was acquitted on the first count of breaking and entering to commit larceny and was found guilty of rape.
On July 15, 1953, the grand jury returned a second indictment based on the same occurrence as the first indictment. This second indictment contained three counts. The first count charged a breaking and entering of an inhabited dwelling house in the night season with intent to commit rape, the second count charged the same breaking and entering with intent to commit assault with intent to commit robbery, and the third count charged assault with intent to rob. The petitioner while represented by counsel was tried to a jury and found guilty on all three counts. On April 29, 1954, some 10 months after his conviction for rape on the first indictment, petitioner was sentenced on the convictions in both trials, the court causing the sentence for rape to run consecutive to the concurrent sentences imposed under the second indictment. Petitioner is presently incarcerated in the Ohio Penitentiary.
Mr. Lawrence Neal, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. John Cinaflona, for respondent.
Petitioner's primary contention is that he was put in jeopardy in his trial and acquittal for breaking and entering with intent to commit larceny, so that his subsequent indictment and conviction for breaking and entering with intent to commit rape and breaking and entering with intent to commit assault with intent to commit robbery, based on the same act for which he was acquitted in his first trial, violated his constitutional right not to be placed twice in jeopardy for the same offense.
This court has held many times that the plea of double jeopardy is a matter of defense which must be raised in the trial court or it is waived. Double jeopardy is not a ground for relief, after conviction, in an action in habeas corpus. Vertz v. Sacks, Warden, 173 Ohio St. 459; Weaver v. Sacks, Warden, 173 Ohio St. 415; Barker v. Sacks, Warden, 173 Ohio St. 413; Foran v. Maxwell, Warden, 173 Ohio St. 561; and Maloney v. Maxwell, Warden, 174 Ohio St. 84.
Petitioner contends further that his sentence for rape was invalid on the ground that there was a delay of some 10 months between his conviction and sentence therefor. This delay undoubtedly occurred because of the pending trial on the other indictments.
It is well established that the time of pronouncing sentence is within the discretion of the trial court, and a delay for a reasonable time does not invalidate the sentence. 24 Corpus Juris Secundum, 408, Criminal Law, Section 1564(1).
The deferring of the pronouncement of sentence on a conviction until trial is had on other indictments pending against an accused does not constitute an unreasonable delay in the pronouncement of sentence, inasmuch as the trial court may reasonably defer such sentence pending the outcome of the other trials for the purpose of determining the severity of the sentences to be imposed.
The petitioner has shown no deprivation of any of his constitutional rights nor has he shown any lack of jurisdiction of the trial court.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.