Opinion
No. 32599.
April 5, 1937. Suggestion of Error Overruled April 19, 1937.
1. CRIMINAL LAW.
Suspension by county court of portion of fine and sentence for selling intoxicating liquor held void, release of defendant from custody of sheriff wrongful, and defendant thereafter still subject to arrest and confinement for unsatisfied portion of fine and sentence (Code 1930, sec. 2020).
2. CRIMINAL LAW.
Petitioner who was placed in jail by sheriff for unlawful possession of intoxicating liquor and held by sheriff for about two weeks, and then delivered to federal marshal and held by him in custody for six months under federal sentence, held not thereby to have liquidated, but to be still subject to, portion of fine and sentence for selling of intoxicating liquor, which county judge had unlawfully suspended (Code 1930, sec. 2020).
3. FINES.
That more than two years had elapsed since imposition of fine and sentence, part of which had been unlawfully suspended by county judge, held not to relieve defendant from serving unsatisfied portion on ground that statute provided that no convict should be held in continuous confinement under conviction for any one offense for failure to pay fine and costs in such case for period of more than two years, where defendant was not in continuous confinement under suspended portion of sentence (Code 1930, secs. 2020, 4058).
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
A.S. Scott, of Laurel, for appellant.
This court will observe that this is not a case where the time for appeal has not passed; it has been not only six months from February, 1932, to August, 1936, but, of course, more than four years. More than four years after the suspended sentence was imposed, the court tries to reinstate the old sentence.
In this case, when appellant was rearrested, and all witnesses say she was, and officer's return clearly shows the same, then when the jail closed over her head the law made the sentence begin to run, and in the contemplation of the law she remained in the jail two years if it took that long to take care of the fine and days given her. Not over two years for the law does not allow longer punishment for misdemeanors.
Section 4058, Code of 1930.
The records show that appellant was not an escaped convict. She was taken by force out of the jail where she belonged and carried away and placed in another jail. We ask this: what if the facts were that this appellant were placed in said jail under the exact facts as shown by the record, except that she should be turned over to the federal authorities — without authority of law so to do — as in this case at bar, to serve out a twenty year sentence, then when the twenty years were up could the court below place appellant back in the county jail to serve out the balance of her fine and days? We say not. Not a case in the world holds that this can be done.
Sentences in criminal proceedings in this state will take effect and begin to operate from the date of their entry in the judgment of the court, unless some other date be inserted therein.
Braxton v. State, 60 So. 66.
If the suspended sentence is void then the original part of the sentence stands as entered in the minutes of the court and it begins to operate immediately. We say further: where the court adjourns for the term after sentencing one convicted of crime, it thereby loses all jurisdiction of the cause, if said court has no authority to render suspended sentences.
Salem v. Reo, 41 Colo. 317; 100 Me. 123; 60 A. 892.
Therefore, after the term is passed at which the original sentence was imposed, the court has no power to modify, amend or revise it or strike out any part of it; the sentence must stand as written, and in jurisdictions where the term system does not prevail, the sentence cannot be altered, charged, or modified after the sentence becomes final.
16 C.J. 1316; U.S. v. Mayer, 235 U.S. 55, 59 L.Ed. 129; 32 L.Ed. 904; Buck v. State, 60 So. 321.
Where the judge had no power to suspend a sentence and the former term had passed the court is powerless to correct its judgment.
16 C.J., sec. 3098.
Where the judgment of sentence has appeared upon the docket and a mittimus has issued, directing the proper officer to enforce the sentence, and such officer, without the sanction of the court refuses to act upon it, and without warrant of law turns the custody of the prisoner over to someone else, after the period specified in the mittimus has expired, the court will refuse to find that the prisoner has not served it and will in consequence refuse authority for his further imprisonment.
16 C.J. 1330.
Where the court does not have power to suspend sentence the sentence must not depend on any condition or contingency, nor be made subject to future decision.
16 C.J. 1303-4.
Where a court has no power to suspend sentence of a particular crime and does attempt to do so it thereby loses jurisdiction of said cause altogether.
Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 A.S.R. 75; U.S. v. Wilson, 46 Fed. 748; Hawaii v. Pedro, 11 Haw. 287; People v. Barrett, 202 Ill. 287, 67 N.E. 23, 95 A.S.R. 230, 63 L.R.A. 82.
Wm. H. Maynard, Assistant Attorney General, for appellee.
The county judge, before whom the petition for habeas corpus was heard, rendered a finding of fact on the hearing of said petition. In habeas corpus proceedings the trial judge is the trier of the facts and passes on the weight of the evidence and the judgment of the trial court must be affirmed if the evidence is sufficient to sustain it.
Cofer v. Sheriff, 131 So. 421.
The decision of the trial judge will be affirmed unless it is manifestly erroneous, either as to the facts or the law.
Parker v. Tullos, 150 Miss. 680, 116 So. 531; Stokes v. Sheriff, 154 Miss. 231, 122 So. 470.
County judge's suspension of sentence in February 12, 1932, judgment was void.
Section 2020, Code of 1930.
Appellant was subject to re-arrest where suspended sentence had not been served.
Section 4058, Code of 1930.
During the time that appellant was out of jail on the void suspension of sentence she was at all times subject to arrest for the purpose of having her serve out the suspended portion of the sentence. This point was conclusively decided in the case of Fuller v. State, 100 Miss. 811, 57 So. 806, which was an opinion on suggestion of error filed in Fuller v. State, 57 So. 6; Ex Parte Bell, 56 Miss. 282; Gibson v. State, 68 Miss. 241, 8 So. 329; Bolton v. State, 166 Miss. 290, 146 So. 453.
Appellant's second contention is ingenious and interesting, but we believe is without any support in law. Appellant's theory seems to be that when she was served with notice of the motion for suspension of sentence, while she was in jail in Jones county on another charge that she commenced to serve time on the suspended portion of the sentence on February 12, 1932. She follows this premise with the theory that when the authorities of Jones county turned her over to the custody of the federal authorities that she was still serving said state sentence and that during the entire time she was in the federal jail she was serving said state sentence. This contention is not borne out by the facts in the record. It is clearly shown that she was never arrested for the purpose of serving the suspended sentence until July, 1936, which was shortly before the petition for habeas corpus. She was already in the jail in Jones county when she was served with notice of a hearing to be had to revoke the period of suspended sentence. It is perfectly apparent that this notice did not amount to an arrest for, in the first place, it was merely a citation, and, second, she was already in jail on another charge.
It was expressly cited in the case of Eastman Oil Mills v. State, 130 Miss. 63, 93 So. 484, that the state can never be bound nor estopped by the unauthorized acts of its officers.
Argued orally by A.S. Scott, for appellant, and by Wm. H. Maynard, for appellee.
The appellant was convicted in the county court of Jones county, on February 12, 1932, of selling intoxicating liquor, and was sentenced to pay a fine of $250 and to serve thirty days in jail; $150 of this fine and the thirty days in jail were suspended by order of the county court, and the appellant having paid $100 of this fine and court costs, was released from custody. In July, 1936, the appellant was arrested and confined in jail under the suspended portion of this sentence, whereupon she sued out a writ of habeas corpus, and this appeal is from the order remanding her to custody.
The suspension of a portion of the fine and the sentence was void under section 2020, Code 1930, which provides that: "It shall be unlawful for any justice of the peace or judge of county court, with or without condition, to suspend any sentence lawfully imposed under this chapter." Consequently, the appellant was wrongfully released from custody and was, at all times thereafter, subject to arrest and confinement for the unsatisfied portion of the sentence imposed. Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L.R.A. (N.S.) 242, Ann. Cas. 1914A, 98, and Bolton v. State, 166 Miss. 290, 146 So. 453.
The appellant says, however: (1) That she was taken into custody under the suspended portion of her sentence and remained in custody for a sufficient length of time to liquidate both the unpaid portion of her fine and the thirty days in jail; and (2) that if this is not true, more than two years have elapsed since the sentence was imposed, and that it cannot now be enforced under section 4058, Code 1930. In support of her first contention, the appellant introduced evidence disclosing that on June 25, 1932, she was arrested and placed in jail by the sheriff of Jones county on the charge of having in her possession intoxicating liquor, and while in jail under this charge, which seems never to have been prosecuted to a termination, the county attorney of Jones county, on June 27, 1932, filed a motion in the county court for the revocation of the suspended portion of her sentence imposed in February, 1932, and that a citation was served on her to show cause why this revocation should not be ordered. No order was entered by the county court on this motion, and on July 8, 1932, while she was still in custody of the sheriff, she was delivered by him to the marshal of the federal court at Meridian, and she was thereafter held in custody for about six months under a sentence imposed by that court. She says that the sheriff was without power to deliver her to the federal authorities, but should have retained her in custody under the unexpired portion of her sentence imposed by the county court in February, 1932, and that consequently the time served by her in the federal prison must be credited on the time she would have served under the county court judgment, had the sheriff complied with his duty and retained her in custody.
It is true the sheriff, without an order of the court to do so, could have taken the appellant in custody on the suspended portion of her sentence, but he did not do this, and it does not appear from the record that he, at any time, was holding her thereunder, and the suspended portion of her sentence could be satisfied by the payment of the $150 and the actual serving of the jail sentence, or if the fine was not paid, by the appellant remaining in jail for the statutory time therefor, in addition to the thirty days imposed. Fuller v. State, supra.
For the same reason, section 4058, Code 1930, has no application here, for the appellant was not in continuous confinement under the suspended portion of her sentence.
Affirmed.