*1 ings framed, was a constitutional issue presented to the court or upon. ruled How- ever, here, on defendant asserts he right was denied the to counsel virtue of permit lay court’s refusal a person, bar, represent not a member of the him.3 This court has had this issue of appeal before it a number of times4 and Sheldon,5 recently most in v. State Vernal City City v. Critton6 and in Lake Salt v. Perkins,7 dispositive. all of which are having There been no constitutional issue Court, raised in the District the decision of that court is final and not reviewable here. Appeal dismissed. No costs awarded. ELLETT, J., CROCKETT, C. and MAU- WILKINS, JJ., GHAN and concur. Gubler, pro se. Palmer, George City Atty.,
John W. St. plaintiff respondent. George, for
St. Utah, Appellant, STATE of Plaintiff HALL, Justice: appeals a District Court trial Defendant Myron Walter B. KELBACH and D. maintaining de novo mobile conviction Lance, Defendants home as a residence in an unauthorized Respondents. George City zone violation of the St. No. 15060. Code.2 initially The defendant was tried and con- Court Utah. jury City victed in the Court of St. Sept. 1977. George, granted was a new trial and was again jury convicted after a trial. day
On the scheduled for trial pro se, appeared
District Court defendant prepared
announced he was jury trial ensued and concluded with a during At no time the proceed-
conviction.
78-5-14, U.C.A., 1953;
VIII,
Beginning
City
Lee,
1. Section
Article
4.
with: Salt Lake
Section
Constitution of Utah.
Robert B. Evans, William T. Wil- Barrett, liam W. R. VanDam, Paul Salt Lake City, for plaintiff-appellant. Soper, James R. City, Salt Lake for de- respondents. fendants and CROCKETT, Justice: The appeals state to challenge the propri- ety of sentencing the defendants to life imprisonment instead of death upon their degree conviction of first murder. Defend- ants move to ground dismiss on the that no such appeal by the state is authorized law. argue only that the ap
Defendants peal permitted the state in criminal cases is 77-39-4, as stated in Sec. U.C.A.1953: state, Appeal by in what cases.—An appeal may be taken the state: (1) From a judgment of dismissal in favor of the upon defendant a motion to quash the information or indictment. (2) From an order arresting judgment. (3) From an order made judg- after affecting ment rights substantial of the state.
(4) From an order of the court direct- ing the jury to find for the defendant. If we accept premise: defendants’ that the appeal by authorization for an state must derive from the above-quoted statute, the right of must be found in subsection then arises: whether the sentence is “an order judg- made after ment,” distinguished from the judgment itself. It is true that the jury verdict and judgment thereon, entered whether of guilty or guilty, not is spoken sometimes as “the judgment” in a criminal case. that judgment, constituted the whole then might regarded as “an or- der made judgment.” after But it is also true that upon until the court acts pronounces verdict and upon sentence there is imposed defendant no burden about which to complain appeal. and take an Ac- commonly understood and est cordingly, requires. (Absent, course, is so it consid- sentence is that which accepted that erations of jeopardy.) However, double de- regarded is either as the aggrieves him and spite persuade court, that effort to so this part essential thereof. judgment or an rejected proposition and ruled to the manner in which with this is the Consistent is, contrary: the state has no Chapter 35 of Utah Code the term is used in right to appeal except as expressly provided *3 Judgment.” “The Ann. entitled in the above-quoted statute.3 It impor- is provides: 77-35-1 tant to have in Section mind that that was the jurisdiction established law of this at all pronouncing. plea Time for a or —After case, times material to this guilty verdict of . . . the court and when the appoint pronouncing must a time for complained sentence imposed; of was and e., judgment . the appeal when this was filed. [i. sentence.] Further in accord with the idea that the general As a proposition the law as judg- sentence not “an order made after is established should remain changed so until ment” is the statement in our case of State by the legislature, whose prerogative it is to v. Fedder:1 change make and to the law. This does not . ordinarily synony- sentence is mean to say that where there is judge-made judgment, mous with and denotes the law, which is later observed to be clearly in a jurisdiction action of court of criminal error, that such error' should be so cast in
formally declaring to the accused the le-
cement that it
be
gal
cannot
remedied.
In
consequences
guilt
of the
which
such
he
has
circumstances the court undoubtedly
confessed or of which he has been
can
emphasis
convicted.
herein is
and
add-
should correct it.
[All
ed.]
But
important
any
more
than
of the
of,
We are not aware
nor have we been
proclaimed
above is the oft
salutary princi
shown, any adjudication to the effect that a
ple:
government
that ours is a
of laws and
sentence is such “an
judg-
order made after
not of men. Accordingly, the law should
ment;” and it does not seem
reasonable
changed simply
not be
because of the will
suppose
that
the
in
allowed
or
judges
desire of
as to what the law is or
above-quoted statute was intended to be to
ought
so,
to be. Much less
should it be so
imposed,
or it
plain-
could have
changed during the
particular
course of a
so
ly
stated.
proceeding to
have
retroactive
effect
The state
argu-
makes
alternative
Notwithstanding
thereon.
the fact that the
ment:
that
quoted
if the
statute does not
change
vindicate,
the state advocates would
appeal,
authorize the
it should be allowed
position
taken in
to,
the dissent referred
upon the ground set forth in the
in
dissent
to so rule in
retroactively
this case
would
Davenport,2 by
the ease of
myself
State
violate
regard
higher
what we
as a
princi
joined
in
Chief Justice Ellett.
ple:
honoring
that of
the established law.
Therein I set forth as persuasively as I
is
change
law,
to be such a
in the
there
proposition
could the
that the above-quoted
by legislative
whether
by judicial
act or
permissive only;
statute is
in any
that
decision, it seems that
it
should have
event
it
supersede
general
could not
prospective effect and that
fairness
grant
right
under Section 9
good
require
conscience
it
should
of Article VIII of our Constitution. Where-
not
fore,
applied retroactively
adversely
state should have such
affect
questions
rights
errors or settle
at
particu
correct
of law
existed
the time a
public
whenever it is deemed that the
controversy
inter-
lar
arose.4
change
1. 1 Utah 2d
HQ3 question grant we have concluded to passing in is a be mentioned motion to To of as of some con- spoken appeal. has been dismiss the which of a sentence for imposition does cern:
life,
penalty,
the death
adverse-
than
rather
MAUGHAN,
HALL, JJ.,
WILKINS
rights of the state.
the substantial
ly affect
concur.
However,
it is of control-
we do not think
ELLETT,
Justice, (dissenting).
Chief
but have assumed
ling importance,
opinions
of the author in the
aside,
main
does,
and have set
opinion regarding
state,
appeals by the
un-
regard
we
as more
with what
to deal
order
cheese,
improve
like swiss
do not
age.
with
problems.
important
His
dissent
case of State
Daven-
which we
proposition
is a further
There
port1 set forth the law correctly and he
bearing upon our
legitimate
think has
have
should
remained faithful to the correct
due to the multi-
on this motion:
action
principles set forth therein and should not
*4
Supreme
opinion of the United States
faced
have changed
simply
his vote
because this
Georgia,5
v.
in the case of Furman
Court
Court heretofore made an error.
there
de-
subsequent adjudications,6
has
consternation and
There should be a better reason for fol-
great
deal of
veloped
penalty.
lowing
holding
the
Other
an erroneous
than the idea
about
death
confusion
error,
it is
we
an
pending before the courts and
that once
make
it must be
cases are
perpetuated
legislature spends
until the
purpose
what useful
could be
its
not clear
until the law is
time to correct our mistakes. We
by adding another
should
served
own errors
clearly defined and settled in that
correct our
as soon as the occa-
more
Moreover, it
these de-
sion arises when we are
appears that
convinced that an
area.
were involved in a series of kill-
error has been made.
I would allow the
fendants
hardly
which could
have been more
to stand.
ings
making any
Without
fiendish or diabolical.
Even if the appeal
permitted by
were not
thereto,
respect
point-
with
it is
suggestion
constitution,2 the judgment
the
of the dis-
up
charged
it is
to the officials
ed out that
trict court
be allowed to
cannot
stand. On
responsibility
prose-
as to further
with
18, 1977,
January
this Court remanded this
defendants,
the
if and when
against
cutions
pro-
case to the district court “for further
purpose
think a useful
would be served
ceedings in accordance with the law.”3 I
thereby.
language
dissented to the
used in the order
thought
this discussion
of remand and
we
It should be noted that
should tell the
Honor,
the
solely
judge
with the motion to dismiss
trial
what the law was. His
deals
reach
appeal;
judge,
and that
it does not
the district
was told to
state’s
do,
any relationship whatsoever to the
accordance with law. This he failed to
nor have
conviction,
him comply
of the defendants’
and we should remand to have
lawfulness
with,7 nor with our order.
has been heretofore dealt
which
the death
penalty.
with the
of
His failure to act in accordance with the
the fact that
presented on
law stems from
the basis of the record
On
herein,
imposed upon
guilty
to be
those
of murder
what has been said
this motion and
affirmed,
231,
360,
145,
461
in our case of
7.Conviction
23 Utah 2d
P.2d
77 L.Ed.
cited
53 S.Ct.
344,
Gisseman, 14 Utah 2d
297.
Rubalcava v.
P.2d 389.
298,
1. 30 Utah 2d
The defendants
shot, postponed but the execution date was Supreme the United Court. States was remanded that Court to
case to consider the case in Court In- light v. Massachusetts.5 Stewart that, doing majority of this
stead of simply remanded the matter Court EHNINGER, Jean Plaintiff court. district Respondent, prob- Utah has never had a racial Since man has been executed (only lem one black *5 EHNINGER, Ronald C. Defendant 1896), since statehood in it cannot Appellant. governed by that we are be said Stew- Therefore, art or the Furman cases. No. 14878. to be made is that of penalty lawful Supreme Court of Utah. death. The trial court should have fixed a proceeded the execution if it new date for 13, Sept. according to law as it was directed to do.
However, the court did not accord- law;
ing imposed a sentence which statutes, found in the to wit: life
cannot be
imprisonment. opinion
To the main in this case is follow
to let two cold-blooded murderers avoid originally
lawful sentence that were is not
given. permitted state imposed, the erroneous sentence seek
matter ends here until defendants by way corpus
relief of habeas on
ground penalty there is no under the retaining prison.
law them in It would for
be better to allow the and have a light
decision on the of the matter
Stewart case as the Court of the requested, merely
United States than
remand for court to follow the law. supine-
It appears me that this Court is shirking its we let the
ly responsibility if 5. 408 U.S. 4. 408 U.S. 92 S.Ct. 33 L.Ed.2d S.Ct. L.Ed.2d 744