State v. DaegeleState v. Daegele
- Reporters:
- , ,
- Before:
- Fontron
The opinion of the court was delivered by
Fontron, J.:This case is now here for the third time. A brief chronicle of its odyssey through the courts is advisable.
On January 2, 1962, the defendant, George William Daegele, appeared before the district court of Douglas County, Kansas, accompanied by counsel, and there entered a plea of guilty to a charge of forcible rape. On January 13, after evidence was introduced of a previous Missouri conviction in 1942, Daegele was sentenced as a second offender to serve a term of not less than ten nor more than forty-two years in conformity with the provisions of the Kansas Habitual Criminal Statute, which was then
Daegele appealed from that conviction pro se and on December 2, 1962, this court dismissed the appeal for reasons appearing in the opinion set forth in State v. Daegele, 190 Kan. 613, 376 P. 2d 807. The United States Supreme Court subsequently granted certiorari and on October 14, 1963, that court remanded the case for reconsideration in light of Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814. The order of the Supreme Court remanding the case can be found in 375 U. S. 1, 11 L. Ed. 2d 44, 84 S. Ct. 89.
Appellate counsel was thereafter provided for Daegele and his appeal made its second appearance in this court. In an opinion
Some time later, the exact date not being shown by the record, the defendant instituted habeas corpus proceedings in the United States District Court for the District of Kansas, in which he challenged the validity of the sentence pronounced under the Habitual Criminal Act. In that lawsuit Daegele attacked the validity of the Missouri conviction used to enhance the penalty, asserting that he had not been represented by counsel. (See Burgett v. Texas, 389 U. S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258.)
On March 3, 1969, the federal district court sustained the defendant’s claim that the 1942 Missouri conviction was void and ordered that Daegele be returned to the custody of the warden of the Kansas State Penitentiary pending resentence proceedings. The court further ordered that in the event Daegele was not resentenced within 120 days from May 5, 1969, he then be discharged from custody.
On August 1, 1969, a date well within the time allotted by the federal court’s ukase, a hearing was held before the Douglas County District Court at which Mr. Daegele again appeared personally and by counsel. Prior to the hearing Daegele was notified that the state intended to present evidence of one previous conviction and would ask that the new sentence be pronounced pursuant to
The prior conviction introduced by the state at the hearing on resentence was a 1956 conviction from Lafayette County, Missouri. The trial court overruled Daegele’s objection to its admission and proceeded to sentence Daegele once again to a term of not less than ten nor more than forty-two years.
The present appeal raises this question: Under the law existing in this jurisdiction when the defendant was resentenced on August 1, 1969, was the 1956 Lafayette County conviction admissible for the purpose of invoking the provisions of
In
State v. Cox,
194 Kan. 120, 397 P. 2d 406, we held that where a sentence has been set aside and proceedings for resentence are held, the state may not for the first time introduce evidence of prior convictions for the purpose of increasing the punishment imposed against the defendant. The rationale of this case was followed and
In the
Bridges
case the defendant was sentenced in Ness County under
“. . . [T]he district court, in a proceeding to correct a void sentence which has been partially served, has no authority to receive additional evidence upon which to base a new sentence. When the defendant appears before the court for resentencing the authority of the trial court is limited to a consideration of the identical facts and conditions existing at the time of the imposition of the original sentence. . . (p. 706.)
The foregoing passage was quoted with approval in
Davis v. State,
198 Kan. 271, 424 P. 2d 471, in which case the Labette County District Court, in enhancing the sentence against Davis under 21-107a, had relied on a Michigan conviction, later set aside. Thereafter, Davis filed an action under
On appeal, however, this court said:
“The record of the criminal proceeding in Labette County does not disclose that evidence of two prior felony convictions was introduced. Under these circumstances the trial court is without power to resentence the petitioner using another prior felony conviction as the basis for invoking the habitual criminal act.” (p.272).
The present case cannot, in our opinion, be distinguished in principle from either Bridges or Davis, and attempts by the state to differentiate between them are not convincing. The so-called evidence of the Lafayette conviction, which the state contends was before the court, was peripheral at best, and of hearsay character.
Before concluding, it may not be amiss to point out a recent change in the Habitual Criminal Act (now
Our conclusion requires that we disapprove of and hold to be invalid that portion of the sentence imposed on August 1, 1969, which exceeds “not less than five nor more than twenty-one years,” and the sentence is hereby corrected to be “for a term of not less than five nor more than twenty-one years” as provided by
The trial court is hereby directed to inscribe the corrected sentence upon its records.