State v. Loveless , 1978 Utah LEXIS 1358 ( 1978 )

WILKINS, Justice:

Defendant Dennis Loveless was charged with and convicted of the crime of aggravated sexual assault pursuant to Sec. 76-5-405, Utah Code Annotated, 1953, as amended, enacted in 1975. All statutory references are to said code.

This case was tried on September 14, 1977, before the District Court of Davis County, State of Utah. The jury returned a verdict of guilty to this crime, a felony in the first degree. On the 13th day of October, 1977, the District Judge sentenced the defendant to a term of five years to life in the State Prison pursuant to Sec. 76-3-203(1). Defendant appeals solely from the judgment and sentence of the Court and not from the conviction and requests this Court to vacate the judgment and sentence of the District Court and to remand this matter with directions to enter judgment and pronounce its sentence pursuant to Sec. 76-3-203(2) relating to a second degree felony, the term of which is not less than one year nor more than fifteen years.

Defendant was charged in the information as follows:

On or about the 6th day of February, 1977 . . . the above defendant did have sexual intercourse with a female not his wife .

The information specified the applicable statute as Sec. 76-5-405, which read at the time of the crime:

Aggravated sexual assault. — (1) A person commits aggravated sexual assault if:

(a) In the course of a rape or attempted rape or forcible sodomy or attempted forcible sodomy:

(1) The actor causes serious bodily injury to the victim; or

(ii) The actor compels submission to the rape or forcible sodomy by threat of kidnapping, death, or serious bodily injury to be inflicted imminently on any person.

(b) The victim of a rape or attempted rape or sodomy or attempted sodomy is under fourteen years of age.

(2) Aggravated sexual assault is a felony of the first degree.

It is pertinent also to note that at the time of the offense, Sec. 76-5-402 was as follows:

Rape. — (1) A male person commits rape when he has sexual intercourse with a female, not his wife, without her consent.

(2) Rape is a felony of the second degree.

Defendant’s sole claim of error on appeal is that when there are two statutes — as here — which prohibit the same. conduct but impose different penalties, he is entitled to the lesser penalty, i. e., one to fifteen years rather than five years to life. We agree, and in Rammell v. Smith, Utah, 560 P.2d 1108 (1977), this Court recently reannounced its adherence to the principle defendant urges¹ (though in Rammell this Court concluded that the proscribed conduct was not identical) by saying:

Proceeding to the main issue in this case; we agree with petitioner’s premise that where there are two statutes which proscribe the same conduct but impose different penalties, the violator is entitled to the lesser.

It is of interest to note that our Legislature in 1977, after the date of the offense in this case, amended Sec. 76-5-402, ante, by adding language to it (after retaining the penalty in rape'cases as a second degree felony) of “unless the victim is under the age of 14, in which case the offense is punishable as a felony of the first degree”; and the Legislature also amended Sec. 76-5-405, ante, by deleting therefrom Subsection (l)(b). We believe these amendments were made because of the acknowledgment by our Legislature of the infirmity in cases such as this one of prohibiting the same conduct by two statutes but prescribing different statutory penalties therefor.

Sec. 76-5-406, enacted in 1973, and not amended in 1977, provides in pertinent part:

An act of sexual intercourse ... is without consent of the victim under any of the following circumstances:

(7) The victim is under fourteen years of age.

The record demonstrates that the only matter relied upon by the State as an aggravating circumstance under Sec. 76-5-405, enacted in 1973 and applicable to the defendant in this case, was (l)(b) thereof and not (l)(a)(i) or (ii). Hence, the State’s claim that an aggravating circumstance other than the victim’s age could defeat defendant’s contention is without merit..

The State also claims that defendant waived any error on his sentence by failing to object to it prior to sentencing. In other words, the State claims untimeliness. We disagree, noting that defendant objected immediately after the sentence. Sec. 77-37-1 is dispositive and states:

The verdict of the jury, and all orders, decisions and rulings made by the district court, or judge thereof, including rulings on objections to . evidence . shall be deemed excepted to. Exceptions to instructions to the jury shall be taken . [Emphasis added.]

Certainly sentencing a defendant to imprisonment is an order or decision of the Court. And defense counsel’s negative reply to the Court’s question of was there any legal reason why sentence should not be imposed at the sentencing hearing in no way cripples or destroys defendant’s objection to the sentence when he believes the limits thereof have been exceeded by law.

Reversed and remanded with instructions to sentence the defendant pursuant to Sec. 76-3-203(2).

CROCKETT, MAUGHAN and HALL, JJ., concur.

1 . Also see State v. Fair, 23 Utah 2d 34, 456 P.2d 168 (1969) and State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969).