Summary
In Reynolds, no suggestion is made that such resort to certiorari must be had within the time statutorily prescribed for appeal of judgment in a criminal proceeding.
Summary of this case from State ex Rel. Warren v. County CourtOpinion
October 7, 1960 —
November 1, 1960.
CERTIORARI to review two judgments of the county court of Chippewa county: ORRIN H. LARRABEE, Judge. Judgments annulled, vacated, and set aside.
For the plaintiff the cause was argued by William A. Platz, assistant attorney general, with whom on the briefs were John W. Reynolds, attorney general, and Eugene R. Jackson, district attorney of Chippewa county.
For the defendants there was a brief and oral argument by Vance L. Sinclair of Chippewa Falls.
On March 27, 1957, Harold J. Gerarden, Sr., pleaded guilty in the Chippewa county court, Honorable ORRIN H. LARRABEE, county judge, presiding, to a charge of burglary in violation of sec. 943.10, Stats. He was represented by a court-appointed counsel, Mr. James Halferty. The cause was then adjourned pending presentence investigation, and on April 3, 1957, Gerarden was sentenced to not more than ten years' imprisonment in the state prison at Waupun. This is the maximum penalty provided by the statute for this offense. There was no stay of execution and he was received at the state prison on April 9, 1957. No appeal was taken nor was a new trial ever granted.
On July 22, 1959, Gerarden filed with the county court a petition which he called a "Petition for writ of error coram nobis." The petition alleged that the fundamental nature of his offense did not warrant the sentence imposed but was imposed because of erroneous information given the court that Gerarden had been convicted of crime on six previous occasions, wherefore Gerarden believes the present ten-year sentence is unduly and unjustifiably excessive. His petition "prays that he be granted whatever consideration or such moderation of sentence as in the premises seems just and proper."
Gerarden does not deny that he committed the burglary for which he was convicted and that he had a previous criminal record.
The court heard the petition and determined that the record of Gerarden's previous criminal career was inaccurate and the inaccuracies influenced the sentence at the time of the sentencing. Whereupon the court ordered:
"It is the judgment and sentence of the court that the sentence of April 3, 1957, is hereby vacated, and in lieu thereof,
"It is the judgment and sentence of the court that you, Harold J. Gerarden, Sr., be punished by imprisonment in the state prison at Waupun, Wisconsin, for a term of not more than five years.
"Dated at Chippewa Falls, Wisconsin, this 29th day of June, 1960.
"By the Court: "/s/ Orrin H. Larrabee, "County Judge, Presiding." Thereafter, on July 29, 1960, Gerarden addressed the court in another petition which again he terms one for a "writ of error coram nobis." This petition states that petitioner believes it was the court's intention in amending the original judgment to have the five-year term begin on the date of the original sentence, but the prison authorities interpret the five-year term as a new sentence without credit for time served on the original one. Gerarden alleges that with credit for time already served and with allowance for reduction of sentence for good behavior his five-year sentence would expire on August 23, 1960. He prays that he be discharged from the state prison forthwith.The county court heard this petition on July 29, 1960, and again amended the judgment. The court wrote for the record that in reducing the ten-year sentence to five years it was the court's intention to give credit upon the five years for time served upon the ten-year sentence. Wherefore:
"It is the judgment and sentence of the court that the sentence of April 3, 1957, and the sentence of June 29, 1960, are hereby vacated and in lieu thereof,
"It is the judgment and sentence of the court that you, Harold J. Gerarden, Sr., be punished by imprisonment in the state prison at Waupun, Wisconsin, for a term of not more than three months.
"Dated at Chippewa Falls, Wisconsin, this 29th day of July, 1960.
"By the Court: "/s/ Orrin H. Larrabee, "County Judge, Presiding." The attorney general then procured the present writ of certiorari, alleging that in changing and modifying the sentences of April 3, 1957, and of June 29, 1960, the county court acted without and in excess of its jurisdiction.Certiorari lies to review questions of the jurisdiction of a trial court to revise, modify, and correct its judgment or sentence. State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 190 N.W. 121, 191 N.W. 565.
The record before us clearly shows that the ten-year sentence was imposed April 3, 1957, and that Gerarden was received at the prison and began serving his sentence on April 9, 1957. At pages 199, 200 of the Zabel Case, supra, this court held that Wisconsin adheres to the common-law principle that a trial court has no power to revise its judgment and sentence in a criminal case after the expiration of the term or after the execution of the sentence has commenced. That rule was reaffirmed in State ex rel. Traister v. Mahoney (1928), 196 Wis. 113, 122, 219 N.W. 380, in which we said:
"The judicial officer pronouncing a sentence for a criminal offense has power to act concerning the same at the same term at which the sentence is pronounced and prior to the execution thereof and before the defendant enters the prison doors to which he has been sentenced. That was plainly and recently declared without qualification to be the rule in this state. State ex rel. Zabel v. Municipal Court, 179 Wis. 195, 199, 190 N.W. 121, 191 N.W. 565. Such ruling is in accord with the general, if not universal, rule at the present time. U.S. v. Howe, 280 Fed. 815, 23 A.L.R. 531, where many cases are cited; Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005, 44 A.L.R. 1193. And it was recognized as the general rule in U.S. v. Murray and Cook v. U.S. (Jan. 3, 1928), 48 Sup. Ct. 146, 149."
An annotation appearing in 168 A.L.R. 706, 707, upon the subject of the power of a trial court to change sentence after commitment or payment of fine says:
"The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force."
We must conclude in the case at bar that the trial court lost jurisdiction to modify the original ten-year sentence on April 9, 1957, when Gerarden entered the state prison in execution of his sentence. The trial court's modification of that sentence by reducing it either to five years or to three months exceeds that court's jurisdiction. Such attempted reductions are void and of no effect.
The state also presents to us alleged fatal defects in the trial court's grant of the writ of coram nobis and the purported action upon it. It also argues that "good time" earned on an original sentence does not carry over to a second sentence for the same offense (see State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N.W.2d 540); and it submits that a court has no jurisdiction to impose a sentence of three months in the state prison. We do not pass on such contentions because they become immaterial in view of our decision that all sentences subsequent to the first are void and of no effect.
By the Court. — The judgments dated June 29, 1960, and July 29, 1960, are annulled, vacated, and set aside.