A life sentence is a fixed or determinate sentence, and in absence of statutory authority is improper in jurisdictions having a mandatory indeterminate sentence law. People v. Westbrook, 411 Ill. 301, 103 N.E.2d 494, 29 A.L.R.2d 1341. Indeterminate sentence statutes are generally held to be mandatory, except where the statute expressly provides for discretion. Pleasant v. State, 137 Tex.Crim. R., 128 S.W.2d 813; State v. Cristensen, 166 Kan. 152, 199 P.2d 475; Abt v. Walker, 126 Conn. 218, 10 A.2d 596; Williams v. State, 233 Ind. 327, 119 N.E.2d 547; In re Smith, 162 Ohio St. 58, 120 N.E.2d 736; Greenough v. State, 136 Neb. 20, 284 N.W. 740, (Statute provides for discretion). In two cases, this court has stated that the trial court should fix both a minimum and a maximum term of imprisonment. Indian Fred v. State, 36 Ariz. 48, 282 P. 930; State v. Myers, 59 Ariz. 200, 125 P.2d 441.
The trial court had no such power. See In re Smith, 162 Ohio St. 58, as to the effect of the erroneous imposition of a fixed instead of a general sentence. Thus, where a sentence for an escape is imposed and made to run concurrently with a defendant's sentences for other crimes, contrary to the provisions of Section 2901.11, Revised Code, such act does not terminate the other sentences but that part of the sentence providing for the concurrent running of the sentence is invalid and inoperative and must be disregarded.
provided by statute, the sentence is not void but, instead, the proper sentence shall be imposed. See Reed v. Maxwell (1964), 176 Ohio St. 356, and In re Smith (1954), 162 Ohio St. 58. * * * *.
Under this statute, if a determinate sentence is imposed instead of a statutorily-required indeterminate sentence, the determinate sentence is simply treated as an indeterminate one. See State v. Gates, Cuyahoga App. No. 93789, 2010-Ohio-5348, at ΒΆ 8 (concluding that the definite-term sentence imposed for a pre-S.B. 2 offense was not void but simply, under R.C. 5145.01, deemed an indefinite sentence); see, also, State v. Whitehead (Mar. 28, 1991), Franklin App. No. 90AP-260 (After finding no error with defendant being resentenced to a corrected indeterminate sentence, from a determinate one, the court noted that "it is at least arguable that the proper [indeterminate] sentence * * * would be applied as a matter of law pursuant to R.C. 5145.01."), citing Reed v. Maxwell (1964), 176 Ohio St. 356, and In re Smith (1954), 162 Ohio St. 58. Here, nothing in the record suggests that the determinate sentence the court imposed for Count 6 was anything other than the result of simple oversight.
"6. Although Section 2901.05, Revised Code, provides that any person guilty of murder in the second degree shall be imprisoned for life, a fixed penalty, such statute must give way to Sections 5143.23 and 5143.05, Revised Code, which provide that all female persons over 16 years of age convicted of felony, except murder in the first degree without recommendation of mercy, shall be sentenced to the reformatory and that courts imposing sentences to reformatory shall make them general and not fixed or limited in their duration." See, also, Ex Parte Thorpe (1940), 137 Ohio St. 325, approved and followed in In re Smith (1954), 162 Ohio St. 58. It is also not correct to treat the increased penalty in a fourth conviction case as a new and separate offense as was done here.