*1 bridges and road thereon had been county.
maintained
Upon the of what have basis said
herein, urge that the remand should be determination of all of the issues mentioned; rights
herein they
road should tried and determined before either to the arbi- resorted
existed.
trary then the closing, action and road;
reopening, in con- defendant
nection with the conduct
county officials, be de- rights their should plaintiffs
termined on the as the basis they contended, and that have should protection herein: I have advocated faith, acted they
that unless in bad liability personal imposed
should be no upon added.) (All emphasis them. Tuckett, J., opinion dissented and filed Henriod, J., dissented and filed joined Tuckett, in the dissent of J. COMBS, Respondent,
Donald Plaintiff TURNER, Warden, W.
John Utah State Prison, Appellant. Defendant
No. 12024.
Supreme Court of Utah.
March *2 Atty.Gen., Bi Romney,
Vernon Lauren Beasley, Hansen, N. Asst.Attys. Robert B. Gen., City, Salt Lake defendant-appel- lant. Boyce,
Ronald N. City, Lake Salt plaintiff-respondent.
ELLETT, Justice: appeals The defendant from an order re- leasing plaintiff from the Utah State corpus. a Prison on writ of habeas plaintiff herein in a was defendant crimi- plea nal case he entered a wherein guilty and was sentenced and prison. 76-20-8.1, (1969 Section U.C.A.19S3 plaintiff Pocket Supplement), under which charged, reads: any requested person shall When credit credit as evidenced device person guilty, it shall unlawful for the charge against be his wife would * * * dismissed; intent to defraud or cheat purchase purchase attempt To pro us the evidence of the credit, on goods, property or service ceedings plea at the time is clear that * * * by any false, ficti- the use of adequately represented by Mr. Combs card, tious, expired counterfeit credit knowingly, counsel that he understand ingly, voluntarily plea entered the plaintiff wife means guilty. True it is that one of his motives proscribed pur- credit card undertook to felony free his wife from the They chase tires. some automobile were charge, bargain but a to that effect with pick up the directed to come back later and necessarily the district does not plaintiff tires. now herein claims amount to coercion.1 changed picking up he his mind about Turner, The case of prison tires he had because been out of iden- (1967), Utah 2d years stay for four and wanted to out. except tical that' matter before us mind, thought per- With that noble he McGuffey did not have counsel when go up mitted pick his wife and another to *3 guilty corpus plea. his entered a habeas the tires. Both he his wife were hearing main that his testified charged the violating with the section of of concern was to a the secure dismissal Upon statute as out set above. the advice charge against his wife. After he entered attorney, of his plea guilty, he entered of plea guilty, charge against the of his against charge thereafter his wife wife was We reversed dismissed. there was dismissed. He sentenced and was releasing prisoner. trial prison committed to and seven months later In the instant the trial matter court’s brought corpus. this writ of habeas finding upon he re- concluded to At hearing on the writ he advanced out; petitioner lease the is set inadequate usual representa- claims of tion in represented that counsel guilty plea his Plaintiff’s not volun- was interest; wife and tarily, knowingly thus a conflict of intelligently en- charged; innocent of offense following coerced tered due to the circumstances: prosecuting attorney in that guilty a deal purpose for the of was whereby made plea securing charges if he entered a pending dismissal of Padgett States, F.Supp. (1968) ; Weber, Cir., v. United 252 United v. 9 States (D.C.1965); States, Alford, 772 148; Kent v. United 429 F.2d North Carolina v. (1 1959); 272 160, 795 F.2d Cir. State U.S. 91 S.Ct. 27 L.Ed.2d Hansen, 79 N.M. posed by
against just undergone up who had this years wife to five cancer; is evidence surgery for Utah State Prison? guilty crime plaintiff of the Yes; MR. I realize that. COMBS: information; charged in there was you BARNEY: And realize MR. do inquiry made to ascertain whether only person, the court is the
plaintiff’s included all elements conduct sentence; and, party, impose that can charged; which he crime with Attorney myself, neither the District nor plaintiff representing any right have do so? plea changed guilty the time his wife, request, representing plaintiff’s was also MR. I make a COMBS: Can creating possible now, thus of in- right conflict sir? prejudicing plaintiff.
terest something You MR. BARNEY: have you want to state— plea guilty dispenses A necessity Yes, sir, issue of proof, and the MR. I do. COMBS: guilt relitigat innocence cannot here regard —in MR. BARNEY: ? jury ed it after a more than could be MR. I would like to ask COMBS: guilty.2 verdict enough time if I could that at the what I have done? court found make restitution on plea inquiry time made “there was no been The defendant had convicted in plaintiff’s to ascertain whether conduct forgeries times four of the crime cluded elements all. points acquainted with the fine was well charged.” with which he was appar and cheat. It is of how to defraud . n It finding difficult see how to. procedure in the ent that he knew the have been made. Mr. Combs’ own cou.ld guilty criminal courts. He knew he was lawyer examined him as follows: time to make restitution. wanted you entering . .MR. BARNEY: And are got fact that his wife and another the mer you, plea, voluntarily, .this and because no defense to Mr. Combs. chandise is fact, have used a credit card without purchase or statute makes it a crime to *4 authority ? purchase, attempt to ' Yes, MR. COMBS: sir. charged were The elements of the crime defendant you presented to the And under- court
MR. BARNEY: do im- that the court was or punishment that can be and his counsel stand 203, 495; Stewart, Am.Jur.2d, P.2d 383 § Law 110 Utah Criminal State v. improper However, be aware that errors. in a case where the plea being jurisdiction made. of a involved, lower court is may the matter be reviewed without its complicated This matter in that is sub- being assigned as error. The law found sequent granting pe- to the oral order Am.Jur.2d, in 5 Appeal and Error § writ, the district moved titioner’s as follows: to dismiss the case under which Even in the assignment absence of an authority the warden relied for his to de- error, appellate usually court will prisoner. tain the court question consider a involving its own the motion to dismiss and written or- jurisdiction jurisdiction or the applicant. der released
lower appellate may court. The jurisdictional consider a Respondent ques that the question contends al- though any parties appeal is moot because tion of this themselves do not * * * raise it. not action this court takes will action; parties effect on the material cases seem to hold that once court, if the district affirms the court delivers a on commit respondent custody; and will remain out of ment ato warden jailer, pow has no that if the the district court reverses er to recall the leading order. A case is either, parties will affect Rice, that of Brown v. 57 Me. 2 Am. charges against have been dismissed Rep. 11 (1869). In that case the defend respondént and were dismissed after an ant guilty, was sentenced to serve adjudication il that his conviction was six jail, months in and was committed. legal pending against and there is nothing Eighteen days later the court undertook him. revoke sentence impose prison agree We would contention if Supreme term. The Court said: granting corpus of the writ of habeas conviction, After legal if no bar is However, proper. reversal of interposed, duty it is the of the court
trial court causes the status to revert back sentence, to award and after such sen- to the situation it was before the sentence imprisonment tence pronounced was vacated. docket, recorded duty on the it is the Appellant appeal did not from the the court to issue a warrant to the sher- assign dismissal of the case or it as error iff warden, directing him to take the Ordinarily his brief custody, this matter. convict and remove him appellate courts will not unassigned place review designated of confinement.
402 acts, during statutory these it the court has done a fixed
When time follow- ing entry, it would seem done had to have their does not extend to au- do, legal power power its over the thorize revision or modification of a * * * destiny, prisoner valid in would sentence after cases appear end. to be at an commitment of the defendant there- under; power its of revision of the sen- People point Another in is that of case long tence exists it remains Meservey, 42 1133 76 Mich. N.W. unexecuted. There, two defendants A permit few states the court to miti- guilty burglary charge to a of were gate a commitment, sentence after but the pris- sentenced in to be confined state great weight authority is to effect day they brought on. Next were before sentence, that no change by way even the sentencing judge where the va- of mitigation, permissible pris- after a sentence, saying appeared cated that it oner has been committed.3 imposed that sentence was under a mis- facts, The motion to dismiss apprehension complaint Supreme The some ten reversed, months after sentence saying: Court and com- mitment should not granted. have been original We think that sen- jurisdiction court had no in mat- effect, gone tences had and that one ter.4 cited, In addition Art. cases day imprisonment Jackson, at VII, Sec. provides of our Constitution sentences, passed under had at the for a power Board of with Pardons vacating time the order was made them. punishments grant commute pardons power The circuit had at that no after This conviction. board the ex- has sentences, time to vacate the because right regard.' clusive dis- in If the authority prisoners over pris- trict court can recall case where a passed out of his hands his own or- oner has been der. complaint, in it would be conflict with constitutionally duties of the created Board page 168 A.L.R. the at annotator of Pardons. says: power may a trial case is reversed directions term, judgments pris- exercise during over its reinstate the and to remand the commitment, 3. See 3.b of A.L.R. the annotation and has before page relationship occurring to matters after- wards. 4. The section of the statute mentioned probation the dissent has do with custody thing happen, require No did warden. which would oner proceeding independent appeal. of this are allowed. costs length
The main talks at about CROCKETT, CALLISTER, J., and C. authority case, the lack of in a criminal J., concur. for the trial court to recall sen- or vacate committed,
tences once a has been *6 quar- —with which I doctrine would not (dissenting). TUCKETT, Justice rel, that is the here. not situation —but pro- the to me that I dissent. It seems The trial nothing court recalled and va- abrogate opinion in the main nouncements nothing cated nothing and did on its own powers upon the cast doubt or at least initiative, grant petition save to the granted provisions to of Sec- courts hearing argument. writ after a full 77-35-17, tion U.C.A.1953. After that the District Attorney moved majority in this I observe that the case, criminal which motion civil matter directs the district court in the justice. interest of separate reinstate a case not before us. The heavily main relies rather It me should decide the issue seems to we on the idea that once the trial court com- legality plaintiff’s custody of the of the accused, mits an power the court “has no beyond go but that we should not that and it, power recall” and that over the “its * * * direct the court in below act a case destiny or his would not here for dealing review one appear end,” to be at an as was au- entirely controversy. different thority to vacate revise the matter. pronouncement
think such and the authori- HENRIOD, (dissenting). inapropos, since, ties cited therefor are Justice stated, the trial did nothing that join I dissent and Mr. Tuckett’s Justice dispositive. would render them This ais dissent. corpus proceeding, habeas civil mat- —a First, only issue legality here is ter, giving not the criminal case rise —and opinion says restraint. The main appeal to it. There was no that from case none, think the decision —hence initially appeal. here The court simply reversal, should be a perhaps, if a has reversing burden of the trial majority of the court is to re- constrained court’s ap- order granting writ, or of verse, leaving the matter of restoring cus- it,- proving dismissing order —not — n tody authorities,- proper to the Warden to case, entirely dif- which bears an something happened unless pre- that would ferent docket in the District number both appear clude it. It present would that that some- Court and which prompted case the District Attor-
ney’s motion to dismiss. Utah, STATE of Plaintiff Respondent, McGuffey cognizant
I am that case, appealed we state unani- BUGGER, Charles Appellant. Defendant and mously granting trial reversed the court’s No. 12278. petition corpus,— writ habeas Supreme Court of Utah. quash and we trial ordered the April 6, 1971. the writ and remand War- case, however, den. that robbery charge on
dismissed the its own
volition. That here. office, Attorney’s an arm
The District state, super- and under direct Attorney (67-5-1),
vision General here, appealing somewhat un- —a circumstance,—
orthodox and inconsistent action,
made the motion to dismiss point an issue was as much liberty.
as Combs’ It restraint would
seem that before this orders the anything to do much
matter of that and the motion
resulting dismissal, presumably
good cause, should be resolved. position addition to take on aspect para- of this case reflected in the Ellett, J., opinion. dissented and filed immediately above,
graph urge per- haps we made a mistake in remand
portion of the case and that we part
should it. The in- overrule that point up
stant itself seems ad-
visability doing. anything To do
more lead in a could us on safari civil
proceeding road down a erstwhile
juristic jungle of no return.