Case Information

*1 OFFViE OF THE ATTORNEY GENERAL OF +WS

AUSTIN

Honorable 0. 3. S. EllIni33on. General Umager, !&mm Prison 8ystem

Huntsville, Texas .~

~._. ‘Dear Sirr OptiLoti No. O-3720

~. Rer Cumulative or obncurrent sentence c’ should Jack Sullivan~s sentence read 37 gears or 20 years?

‘Fhia letter is In &ply to r&r 0plnioiI request 6; recent date from whloh we quotx the follovlngr

‘bar records reveal that on January 25, ’ 1 1 ~ig33, in wf30 x0. 2239, in the District Court

of Hale County, Sack Sul2iva1xvaa oonvioted of the offense of Robbery with Firearms ,~ and on February 15 was sentenced bg said oourt to eerve not, less than five nor more t-han tventy years in the penitentiary. Theretiter, on March 21, 1933, in Cause ITo. 1717 in the Dls- trlct Court OS Lubbock County, Sullivan wa? oonvlcted of the offense of RobberJi with Firearms, and was sentenced by said court i5han five nor more than to serve not less seventeen years In the penitentiary, and that this sentence Is to be cumulative of a~ other sent.ence that the defendant has or may have ln them future, during the tine of this ssntenCer “8ull~~van appealed this platter ionvLation to the Court of Criminal Appeals and F?date was issued Ootober 27, 1933, upholdiqg tti’oon- viction but reforming his sentence to show ‘Not lose than five nor more than seventeen years’. ‘In viev Of the convictions and sentences outlined above, ve are inclined to believe.

Jack Sullivan hao a total sentence of 37 gears *2 . . . .

I[joorEb2ii 0;. j;. &. &Illngson,~ Page. 2

~$rison~ < and vu shon euah on him reoord ia; . ‘ the record offloe. “tie. would sincerely appreciate your . giving us the b6B6fit of your ia .~, thle matter, advising vhether Su2livan~s sentence should read 37 yeare as ve have it,> or 20 yeaxe as contended by him. ”

You also enoloeed copies of the eentenoes.from Hale- a Lubbock Counties, confirming the statement made in your In tine Lubbock County sentence appeara letter, copied above.. order*. the fol2oving ~1. ~

‘This a’entenoe~ la to be cumu2at~ve~ to any other sentence or may have in the Suture,.durIng that the defendant has the time 0f'this.sentence.I'

We find that both cases hereti wSerred.to were'ap-- pealM by Su22lva.n to the Court of Crlmlnal Appeals, ‘the Hale County conviction being af3Xrmed 3.n an opinion printed In 61 S.. Y. (2d) 1118 vhile the Lubbock County ease is reported ia I.24 Tex. Cr. .R. 1/35,, 63 S..W.. (26) 704. FPom ‘se court ‘8. 0plllLon in the latter oase ve quote*

'we Slnd in the reaord no statement of facts hop oomplaint 0r any matter of prooedum,.

except that in his brief appallant vigorously.

urges that the .court vas in error in a part.

of hle senteke, pointed out in the brief.. Wu~ are In accord vlth appellant’s contention .that.

aaid part of the sentence was erroneous, but *3 Page gonorable 0. Y, 8. ElUllg~~,

I : ‘~ “The judgment will be affilned with the sentence reformed as above statedi” (Emphasis ours.)

As vi11 be noted by readin@,the underlined laUgU&ge, tti effect of the Is to vitiate and rendor wholly in- effective the attempt of the trial court to .make the Lubbock &ntp sentence cumulative with any other, including, of COLWBB, Ihe iirde Cm&y Sentence. Befng void, the quoted clause must be rzgletely disregarded, r:tia as though no mention was made therein of w and the sentence from Lubbock County other con- rmiona. And, St is well settled that where the trial court CMI not order ln Lta judpent that two or more sentences in dlf- :arent prooocutions shall’be cumulative, the terms of lmprlson- See Rx parte Davis, 71 Ter. Cr. R. 538, mat run concurrently, IA 3’. Ii. 459.

In view of the above, we must respeotfully advise you’ at the prisoner §ullivac is correct, and your reoords should k Changed to provide for hla dFscharge after he baa completed t*+at). ye&r’s imprisonment, with due allowance made for overttie u commutation earned, if any.

ioure very truly