STATE of Utah, Plaintiff and Respondent, v. Gary R. SAXTON, Defendant and Appellant.
No. 13500.
Supreme Court of Utah.
March 7, 1974.
519 P.2d 1340
Our conclusion that the judgment cannot be sustained for the reasons hereinabove set forth makes it unnecessary and undesirable to discuss the frailties which exist in the proof of damages, and other errors assigned.
Remanded with directions to enter judgment for the defendant. Costs to defendant (appellant).
CALLISTER, C. J., and HENRIOD, ELLETT and TUCKETT, JJ., concur.
Vernon B. Romney, Atty. Gen., M. Reid Russell, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
CROCKETT, Justice:
Gary R. Saxton seeks reversal of his conviction for passing a check for $250 without sufficient funds or credit in violation of
In January 1973, a motion was made on defendant‘s behalf that the Utah detainer against him be dropped and that the charge be dismissed because it had not been disposed of in the time required in accordance with his request. He is obviously not entitled to any relief in that regard. The request for disposition of charges pending against a prisoner relates only to retried charges; and is not purposed to provide relief after conviction.
Upon defendant‘s release from Lompoc he was returned to Utah and sentence of an indeterminate term of not to exceed five years in the Utah State Prison was imposed.
Defendant essays the not unfamiliar contention that there was not sufficient evidence to establish his guilt. Particularly, he argues that there was not evidence to show that there was not sufficient funds or credit with the Bank of Boise, Idaho, to cover his check. This seems to invite us to blind ourselves to the dishonored check. Related to this, he argues that he should have been given the benefit of the extradition of witnesses procedure2 to have a vice president of the bank brought from Idaho to testify. If there had been any merit to defendant‘s contention that the testimony of a vice president of the Bank of Boise would have shown that he had sufficient funds or credit to cover the spurious check, there is no reason whatsoever why this could not have been done. While there is no transcript before us, it is obvious that any further exploration of this fact could have been done by correspondence or by deposition; and there is no indication that any such attempt was made.
Defendant contends that the Utah court had no jurisdiction over the offense, because proof of one of its essential elements, the insufficiency of funds in the Idaho bank, was outside the state. The contention is without merit. The essential wrong in the passing of a worthless check is the cheating and defrauding of the payee. This occurred in Utah; and the Utah courts have jurisdiction to deal with the offense, even though proof of some of the facts in the total scheme of the crime may extend into another state.3
Defendant also raises the issue that the trial court lost jurisdiction over him for purposes of this case because it released him on his own recognizance; and because the imposition of sentence was in
Defendant challenges the sentence imposed on him of not more than five years in the state prison as provided in
The State argues that
Any offense committed prior to the effective date of this code shall be governed by the law, statutory and non-statutory, existing at the time of commission thereof, except that a defense or limitation on punishment available under this code shall be available to any defendant tried or retried after the effective date. [Emphasis added.]
The “non-statutory” law “existing at the time of commission” of this crime included the rule stated above: that if the penalty for a crime is reduced before sentence, the defendant is entitled to the lesser penalty. The fact that the final “except” clause confers further assurance that anyone “tried or retried” after the effective date of the act shall also have the benefit of a change to a lesser penalty, should not be regarded as depriving this defendant of that benefit. Inasmuch as the effective
Defendant also argues that he was deprived of his constitutional right to be represented by competent counsel at his trial.9 This charge is unsupported except by his naked assertion, a charge so patently spurious as not to be worthy of comment, except to note and reject it.10
In accordance with what we have said herein, the conviction is affirmed, but the case is remanded for the purpose of imposing the proper sentence as stated above.11
No costs awarded.
ELLETT and TUCKETT, JJ., concur.
HENRIOD, Justice (dissenting).
I dissent. The author of the main opinion originally said in an opinion that is now changed, the opposite of what is now espoused, when he said:
“However, in the adoption of the new code, the legislature has dealt with this problem in
Any offense committed prior to the effective date of this code shall be governed by the law, statutory and non-statutory, existing at the time of commission thereof, except that a defense or limitation on punishment available under this code shall be available to any defendant tried or retried after the effective date.
“This defendant had been tried and convicted in August 1971 for an offense committed prior to that time. He has been neither ‘tried nor retried’ after the effective date of the new code which was July 1, 1973. Thus, according to the statute just quoted, his ‘offense committed prior to the effective date of this code shall be governed by the law . . . existing at the time of the commission thereof . . .,’ and he was properly sentenced thereunder.”
I concurred in the language quoted above, which better could not have been enunciated, and I think it is, always has been, and should be the law in cases like this,—so,—what must I do but dissent in this case,—which I do do in consonance with my convictions,—not knowing about or the reason for the turnabout, and I suppose should care less, if the majority of this court exspouses it.
CALLISTER, C. J., concurs in the views expressed in the dissenting opinion of HENRIOD, J.