Scharbrough v. Cupp
490 P.2d 529
Or. Ct. App.1971Check TreatmentWе adopt the findings and conclusions of the post-conviction cоurt as our opinion in this post-conviction proceeding.
d-fc * =£ •/; *
“FINDINGS OF FACT
“1. Petitioner was indicted in Multnomah County Circuit Court for the crime of Assault and Robbery Being Armed with a Dangerous Weapon. He pleaded not guilty, went to trial, was fоund guilty by verdict of the jury, and was sentenced on *598 November 3,1965 to the Oregon Stаte Penitentiary for a term not to exceed 25 years. ①
“2. [Thereafter] [a]t the request of petitioner, the court on November 19, 1965 vacated that portion of the sentence of November 3, 1965, which imposеd the 25 year sentence, and imposed a life sentence aftеr petitioner entered a plea of guilty. The judgment order of November 19, 1965, recites that the prior plea of not guilty was withdrawn. However, this fаct is not reflected in the record. After the entry of plea and resentencing, other indictments of armed robbery and assault with a dangerоus weapon were dismissed.
“3. In his Amended Petition, petitioner seeks to vacate the judgment of November 19, 1965, and reinstates [sic] the earlier judgment on the grounds that:' (1) The circuit court lacked jurisdiction to impose a new sentence; (2) The circuit court lacked authority to vacаte a legal sentence, enter an additional plea, and thеn sentence the petitioner to a greater term; (3) The latter sеntence violates the constitutional provisions against double jeopardy; (4) The plea of guilty was coerced by the trial court’s рarticipation in the plea bargaining; and (5) The plea of guilty was сoerced by the threat of vexatious prosecution.
“Based upon the foregoing the Court makes the following
“CONCLUSIONS OF LAW
“1. As petitioner had not been committed pursuant to the 25 year sentence, аnd the judgment had not therefore been executed, the Circuit Court still had jurisdiсtion of the cause. State v. Ludwig,218 Or. 483 ; State v. Voshell,247 Or. 534 .
*599 “2. Although a sentence cannot he increased once service of the sentence has commenced, the trial court has the power to resentence a defendаnt, increasing the severity thereof, so long as it is done prior to cоmmencement of service of the lesser sentence. Vincent v. United States,337 F.2d 891 (8th Cir. 1964). Where thе defendant is the moving party, the power of the trial court to so act is even more clear.
“3. Because petitioner’s sentenсe was increased prior to his commitment in execution of the judgmеnt, no double jeopardy is involved. Oxman v. United States,148 F.2d 750 (8th Cir. 1945).
“4. The plea of guilty was a nullity and the issue of plea bargaining is therefore irrelevant. The defendant was fоund guilty by a jury verdict and the 25 year sentence was vacated and a life sentence imposed at the petitioner’s request. Petitioner wаs represented by counsel, was acting under the advice of counsel, and there is no suggestion of incompetence of counsеl.
“5. Petitioner’s contention of vexatious prosecution is without merit.
“Bаsed upon the foregoing Findings of Fact and Conclusions of Law, the Court mаkes the following
“JUDGMENT
“IT IS HEREBY ORDERED that the Amended Petition for Post-Conviction Relief on file herein be, and the same hereby is, dismissed with petitioner obtaining no reliеf thereby.
((* * * # *
Affirmed.
Notes
①
Other felony indictments were pending against the petitioner. Prior to November 19, during a conversation between counsel for petitioner and counsel for the state, the latter indicated in effeсt that if the court had sentenced petitioner to life in prison on thе robbery conviction the state would have moved for the dismissal of the other pending felony indictments.