State v. Eighth Judicial District CourtState v. Eighth Judicial District Court
- Reporters:
- , ,
- Before:
- Batjer, Collins, Zenoff, Mowbray, Thompson
BATJER, Justice.
On October 23, 1968, the respondent, Alvin N. Wartman, Judge of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, sentenced Charles Ronald Black, hereinafter referred to as the “defendant“, who had been found guilty of burglary by a jury verdict as follows: “Ten (10) years, eight (8) years of sentence will be suspended and following the serving of period of two (2) years placed on probation for three (3) years.”
An original petition for mandamus was filed in this court by the petitioner against the respondent, Alvin N. Wartman, and the respondent district court. The object of the petition is to compel the judge or the district court to set aside that part of the judgment purporting to suspend eight years of a ten year sentence and granting the defendant three years probation after he has served two years in the Nevada state
The petitioner contends the sentence is both illegal and unconstitutional because the respondent exceeded his jurisdictional authority when he suspended part of the sentence and placed the defendant on probation following two years of incarceration. We agree.
At the outset the respondent asserts that the writ of mandamus is not available to the petitioner in the present action. This contention is without merit. Mandamus is a proper remedy to compel the vacation of a judgment which unlawfully suspends the execution of a sentence in a criminal case. Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); State ex rel. Gordon v. Zangerle, 136 Ohio St. 371, 26 N.E.2d 190 (1940); People ex rel. Swanson v. Williams, 352 Ill. 227, 185 N.E. 598 (1933).
In Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960), this court held: “The subject of parole in this state is within the legislative authority given by the constitution to the legislature.
At common law the courts had no power to suspend the imposition of sentence. State v. Douglas, 87 Ariz. 182, 349 P.2d 622 (1960) and State ex rel. Gordon v. Zangerle, supra. Nor do trial courts have inherent power to suspend the imposition or execution of a sentence and may order such suspension only as authorized by statute. People ex rel. Swanson v. Williams, supra. Such statutory power must be strictly construed.
Here the judge was required to suspend the entire sentence and then place the defendant on such probation as within his discretion appeared appropriate.
Although the judge stated that he was placing the defendant on probation for three (3) years following two (2) years incarceration, what he was in effect doing was granting a delayed parole.
In Ex Parte United States, supra, the court said: “And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative, and includes the right in advance to bring within judicial discretion for the purpose of executing the statute elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relief from the punishment fixed by law and ascertained according to the methods by it provided, belongs to the executive department.”
In this state the granting of any relief from punishment after incarceration in the state prison is an executive function authorized by the legislature and performed by the state board of parole commissioners, (
In this case the sentence pronounced against the defendant by the judge was a judicial invasion into the legislative and
The failure to properly sentence does not render the trial and proceedings a nullity. When an improper sentence is the sole basis of the complaint no vacation of conviction or adjudication is necessary since justice may be done by correction of the sentence. Warden, Nevada State Prison v. Peters, 83 Nev. 298, 429 P.2d 549 (1967); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966); Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967). The trial court has inherent jurisdiction to vacate or modify its orders and judgments. Warden, Nevada State Prison v. Peters, supra.
In State v. Johnson, 75 Nev. 481, 346 P.2d 291 (1959), this court said: “Where the penal statute gives no discretion to the trial court in fixing the punishment, it would be proper for this court without remand to modify the sentence to conform to the statute. State v. Moore, 48 Nev. 405, 233 P. 523. In this case, however, the applicable statute does give discretion, limited as it is to the amount of the fine.”
Because of the discretion vested in the trial court, we direct, in this instance, that the case be remanded and that the trial judge correct the sentence in accordance with the applicable statutes, his discretionary power, and this opinion.
COLLINS, C.J., and ZENOFF, MOWBRAY and THOMPSON, JJ., concur.