Opinion
No. 33928
Decided June 23, 1954.
Habeas corpus — Incarceration in penitentiary — Conviction lawful but sentence void — Discharge from unlawful confinement — Delay in execution of discharge order authorized — Authority to order petitioner returned to custody of sheriff.
APPEAL from the Court of Appeals for Franklin county.
Appellant petitioner entered a plea of not guilty by reason of insanity to an indictment charging him with taking indecent and improper liberties with a minor, contrary to the provisions of Section 12423-1, General Code. The trial court committed him to Lima State Hospital for observation, under authority of Section 13441-4, General Code. He was reported legally sane and returned to the trial court where he withdrew his plea of not guilty by reason of insanity and entered a plea of guilty. The court accepted his plea and immediately sentenced him to the penitentiary.
By the instant proceeding in habeas corpus, brought originally in the Court of Appeals, petitioner seeks his release from incarceration in the penitentiary, contending that the sentence is illegal and void because the sentencing court failed to comply with the provisions of Section 13451-20, General Code.
The Court of Appeals held that the purpose of the provision of that section, that "after conviction and before sentence, a trial court must refer for examination all persons convicted under Sections * * * 12423-1 * * * to the Department [of Public Welfare]," is to require a psychiatric examination in order that the court may be advised as to what sentence should be pronounced and to which institution the convicted person should be committed; that that provision of the statute is mandatory; that the trial court was without jurisdiction to sentence petitioner until after compliance with that provision; that the sentence is void; and that the petitioner should be discharged. The court, however, ordered the warden of the penitentiary to "deliver said petitioner to the custody of the sheriff * * * who will return said petitioner to the Court of Common Pleas * * * for further proceedings according to law."
An appeal as of right from that portion of the order above quoted brings the cause to this court for review.
Mr. Edgar I. Shott, Jr., for appellant.
Mr. C. William O'Neill, attorney general, and Mr. Thomas R. Lloyd, for appellee.
The question presented is whether the Court of Appeals had the power to order the release of the petitioner from unlawful custody of the respondent warden and at the same time order the warden to transfer custody of the petitioner to the sheriff for return to the sentencing court for further proceedings.
The conviction on the plea of guilty was lawful but the sentence was void for failure of the trial court to comply with the above-quoted provision of Section 13451-20, General Code. The petitioner was entitled to be discharged from his confinement under the unlawful commitment but not to absolute freedom. He was still in the custody of the court. The Court of Appeals had authority to delay the execution of its order of discharge until the trial court had an opportunity to resentence the petitioner, which delay could have been accomplished by ordering his retention in the penitentiary. In re Knight, 144 Ohio St. 257, 58 N.E.2d 671.
Precisely the same effect has been accomplished by ordering petitioner to be delivered to the custody of the sheriff to be returned to the trial court for further proceedings.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.