State v. Lee Lim , 79 Utah 68 ( 1932 )

The defendant, on October 13, 1926, in the district court of Salt Lake county, entered a plea of guilty to the charge of murder in the second degree, and was sentenced by the court to an indeterminate term of imprisonment in the Utah State Prison of between ten years and life. Pursuant to this sentence, defendant was delivered to the warden of the state prison and remained imprisoned until released on habeas corpus proceedings in January, 1930. Lee Lim v. Davis, 75 Utah 245, 284 P. 323,325. In that case this court held the indeterminate sentence void for indefiniteness because not authorized by statute, Comp. Laws Utah 1917, § 8026, providing for a definite term of imprisonment of not less than ten years and which may be for life, and therefore furnished no authority for defendant's incarceration in the state prison. He was thereupon released from custody, but was immediately thereafter apprehended on warrant of arrest issued out of the district court of Salt Lake county and brought before that court for sentence on February 15, 1930. The defendant objected to the jurisdiction of the district court, and, without waiving such objection, undertook to withdraw his plea of guilty and enter a plea of not guilty. The court denied defendant's right to withdraw his plea and substitute another. After the required formalities, a sentence of imprisonment at hard labor in the state prison for a term of ten years to begin October 13, 1926, was duly pronounced. From this sentence defendant appeals and assigns error as follows:

"1. That the District Court had lost jurisdiction upon appellant to pass sentence upon him on February 15, 1930.

"2. That the court erred in refusing to allow appellant to withdraw his plea of guilty and enter a plea of not guilty, in accordance with section 8900, Compiled Laws Utah 1917."

The following reasons are urged why the district court was without jurisdiction to pronounce a corrected sentence: The sentence was pronounced after the term at which conviction was had, and not within the time for sentence fixed by statute, Comp. Laws Utah 1917, § 9041, "which must be at least two days and not more than ten days after verdict"; it was not imposed within a reasonable time after conviction; defendant was placed in double jeopardy for the same offense; and defendant had entered upon and served part of the void sentence.

One or more of these points were raised and decided contrary to the appellant in each of the cases hereafter cited and discussed, and all of these points are covered by one or more of such cases.

In the case of Lee Lim v. Davis, supra, a majority of the court held, and this was the decision in the case, that the court would not on habeas corpus determine the question of the jurisdiction of the district court to then pass sentence upon the defendant. The court was unanimous in the view that the first sentence was void. In the prevailing opinion it was said:

"The judgment on conviction based on petitioner's plea of guilty being valid, should be enforced and is enforceable by the pronouncement of a proper sentence, unless the court has lost jurisdiction of the cause by lapse of time to now render a valid judgment."

The case being here on appeal, the district court was directed to make an order releasing the prisoner, but "without prejudice to the rights of the state to take any lawful measure to reassume jurisdiction of the petitioner in order that further proceedings may be had against him according to law."

It is now argued by appellant that, because of the use of this language, and particularly the word "reassume," the decision "could only mean one thing, that is, that the district court had lost jurisdiction because if that court has not lost jurisdiction it would not be necessary for it to ``reassume' jurisdiction." To properly comprehend the meaning of that decision, it is necessary to read more than one sentence or paragraph. From the context, it is clear that no such implication can arise from the language used. The general rule stated in 29 C.J. 175, was quoted with approval in Lee Lim v. Davis, supra, as follows:

"Where the conviction is valid, but the judgment and sentence is unauthorized, the prisoner will be remanded to the custody of the proper officer in order that further proceedings may be had according to law, or the discharge may be delayed for a reasonable time to permit of further proceedings."

That we did not follow this rule and remand the prisoner to the trial court for sentence can have no effect on the validity of the sentence thereafter imposed. This court did not decide that the trial court was without jurisdiction, 1 but carefully refrained from passing on that question. If the trial court had jurisdiction, we did not deprive it of its power by failure to remand the prisoner for its action.

We are of the view that the district court had jurisdiction of the case and of the defendant, notwithstanding the lapse of approximately three years and four months, and that the sentence pronounced by it on February 15, 1930, was in all respects lawful and valid. The first sentence being 2 void, the jurisdiction of the district court continued over the case and the prisoner until a valid sentence was imposed. The trial court in pronouncing its corrected sentence took into consideration the time already served by defendant, and fixed the commencement of such term as October 13, 1926, the day the void sentence was pronounced. Whether it was proper for the court to do this need not now be considered, since the defendant is not complaining of this part of the sentence, and, indeed, it is as favorable to him as he could hope for. Neither has the state complained of this feature of the sentence.

The defendant himself was the actor in setting in motion the proceedings by which his sentence was declared void. Had the attack upon the sentence been direct by appeal instead of collateral by writ of habeas corpus there could be no question of the jurisdiction of the district court to impose a proper sentence after the first was declared illegal or void. State v.Carmen, 44 Utah 353, 140 P. 670; Murphy v. Commonwealth ofMassachusetts, 172 Mass. 264, 52 N.E. 505, 43 L.R.A. 154, 70 Am. St. Rep. 266; Id., 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, affirming Com. v. Murphy, 174 Mass. 369, 54 N.E. 860, 48 L.R.A. 393, 75 Am. St. Rep. 353; 44 A.L.R. 1212.

The defect in the first sentence did not inhere in the judgment of conviction. The defendant pleaded guilty, and made no attack on any of the proceedings except the sentence. Had he appealed from the illegal sentence, as he had a right to do, notwithstanding his plea of guilty, this court would have set aside the sentence as void and have remanded the case to the trial court for a valid sentence. State v. Carmen, supra. There is no principle on which it can be successfully maintained that, by serving part of a void sentence instead of appealing from it, but later attacking it in collateral proceedings, the defendant can obtain immunity from being sentenced to the judgment provided by law. State v. Pitcher, 164 La. 1051,115 So. 187.

The contention that the sentence of October 26, 1925, is void for the purpose of holding the defendant in the custody of the warden of the state prison, but is valid as a discharge ment of conviction. The defendant pleaded guilty, and made from the conviction under his plea of guilty, and is effective to the end the prosecution against him, is "illogical in the last degree." Ex parte Smith, 152 Cal. 566, 93 P. 191. A void judgment does not operate to divest a court of jurisdiction of the cause in which it is rendered. It is a mere nullity, and is ineffective for any purpose.

"A judgment which is void, as distinguished from one which is merely voidable, or liable to be vacated or set aside for irregularity or other cause, or reversed for error, is a mere nullity; it is not binding on anyone; it raises no lien or estoppel; it does not impair or affect the rights of anyone, unless by the agreement of the parties concerned; it confers no rights upon the party in whose favor it is given, and affords no protection to persons acting under it; it does not even operate as a discontinuance of the action. Such a judgment may be vacated or set aside, even on motion of the party in whose favor it is given, if it is not such a judgment as he sought; but it is not necessary to take any steps to vacate or avoid it until an effort is made to enforce it. A valid judgment may be entered subsequently in disregard of the void judgment." 34 C.J. 509.

Among the cases cited in support of this text is State v.Bates, 22 Utah 65, 61 P. 905, 83 Am. St. Rep. 768. There the defendant was charged, convicted and sentenced for murder in the second degree. The offense was committed shortly before Utah became a state and the trial conducted after statehood before a jury of eight persons, as provided by the state Constitution. On appeal to the state Supreme Court, the judgment was affirmed.14 Utah 293, 47 P. 78, 43 L.R.A. 33. In the meantime, another case,State v. Thompson, 15 Utah 488, 50 P. 409, involving the legality of a trial before eight jurors for felony committed before statehood was appealed to the Supreme Court of the United States, and it was by that court held that the provision for a jury of eight persons was ex post facto in its application to felonies committed before the territory became a state, and that the trial, conviction, and sentence were void. 170 U.S. 343,18 S.Ct. 620, 42 L.Ed. 1061. After this decision was announced, the defendant Bates, applied for and obtained his release from the state prison on a writ of habeas corpus. He was immediately rearrested and taken before the district court for trial, although more than two years had passed since his plea was entered. The district court held it had no jurisdiction over the subject-matter or the person of the defendant, and had no authority to try the case, and hence dismissed the case and released the defendant. On appeal by the state, this court held that the void trial, conviction, and sentence were mere nullities, that the case remained pending in the district court as it was before the void trial and judgment, and "as a consequence, upon his release from imprisonment, because of a void judgment, he was again subject to arrest, under the same indictment and upon the same charge, and no plea of once having been put in jeopardy for the same offense can be a bar to a lawful trial, notwithstanding his former conviction stands unreversed." The cause was remanded, with directions to the court below to reinstate the case and proceed in accordance with the decision. We see no substantial difference in principle between that case and this. Here the conviction was valid, but the sentence was void. The void sentence created no rights, nor did it impair or affect any right. The case stood as if no sentence had been imposed, and jurisdiction of the district court continued until a valid judgment was imposed. This must be true, unless by mere lapse of time or because of the provisions of Comp. Laws Utah 1917, § 9041, the trial court lost its jurisdiction over the case and person of the defendant.

It shocks one's conception of good sense and justice to say that a person who has been lawfully convicted of a crime should be relieved from serving the sentence provided by law because the court erred in pronouncing sentence. Certainly the defendant ought not to be set at liberty until he has served the imprisonment which the law requires to be imposed upon him as punishment for his crime, Halderman's Case, 53 Pa. Super. 554, unless he be relieved therefrom by lawful authority.

Our statute, Comp. Laws Utah 1917, § 9041, provides: "After a plea or verdict of guilty, * * * if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which must be at least two days and not more than ten days after verdict," and section 9051 provides: "If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered." The first judgment was rendered within the time required by the statute, but that judgment, through mistake of the court in its construction and application of the indeterminate sentence law, was in law void and of no effect for any purpose. Under these circumstances, can it be said that jurisdiction was lost because a valid judgment was not pronounced within the ten days of the plea of guilty? Undoubtedly the amendment of 1915, which provided that sentence should be passed not more than ten days after verdict, was enacted pursuant to a sound public policy for the purpose of insuring prompt infliction of penalty upon one convicted of crime. It was not considered desirable that courts indulge in prolonged delays before sentencing convicted criminals. There is nothing in the statute, however, to indicate that the Legislature intended that the court should lose jurisdiction of the cause and that a convicted defendant should be entirely relieved of the punishment provided by law, if by accident, mistake, or design the court failed within ten days to impose a valid sentence, or was prevented from doing so because of the escape of the criminal after conviction and before sentence, or if the convicted person were at large on bail, and failed within that time to present himself for sentence. We think no one would so contend. This court has held the time fixed by the statute is not jurisdictional. Rose v.Dist. Court, 67 Utah 526, 248 P. 486. If the statute in this particular be regarded as directory within the requirement that sentence, if not pronounced within ten days, should be imposed within a reasonable time, then, in determining what is a reasonable time, all the facts and circumstances should be considered. The minimum term of imprisonment which the court could impose upon a defendant convicted of second degree murder is ten years. The maximum is life. A sentence for the minimum term, if the defendant earned full credit for good behavior, would be served in five years and ten months. This defendant had served only three years and four months when released on habeas corpus. The defendant has not served even the minimum imprisonment required by law for his offense. Another circumstance to be considered is that the court intended to impose the sentence required by law, but through mistake failed in effecting that purpose, which is quite different to a case where the court for good cause shown determined that the prisoner should receive no punishment, notwithstanding the requirement of the law that sentence be imposed. In view of these circumstances, we cannot say that the time which elapsed between conviction and sentence was unreasonably long.

We think, however, this statutory provision was not intended to cover a situation such as appears in this case where sentence was imposed within the time required by section 9041 but through mistake of law the sentence was void. The California courts have so held. There is sufficient similarity between the law of that state and of this state to justify us in following the same rule. Section 1191 of the Penal Code of California requires that the court appoint a time for pronouncing judgment, "which must not be less than two, nor more than five days after the verdict or plea of guilty." That statute is different from ours, in that it further provides that the court may extend the time not more than ten days for the purpose of hearing or determining a motion for new trial or one in arrest of judgment, or for not more than twenty days to consider the question of probation, and upon request of the defendant for not more than ninety days additional. Section 1202 of the California Penal Code provides that sentence must be pronounced at the time so fixed, and, to prevent courts from arbitrarily ignoring and disobeying the law, it is then further provided that, if the sentence be not pronounced within the time limited, "the defendant shall be entitled to a new trial." These sections of the California Code have been held to have no application, and are not effective to defeat the jurisdiction of the trial court to pronounce a valid sentence, notwithstanding lapse of time beyond that provided by statute, in cases where the facts were similar to those of the instant case, that is, where a sentence was pronounced within the time but found to be void because of the mistaken application of the indeterminate sentence law, and notwithstanding there were no motions or proceedings of any kind to stay arrest or prevent the rendition of such judgment. In re Lee, 177 Cal. 690,171 P. 958.

It is apparent that section 9041 of our Code has no application to a case where the trial court in good faith attempted to follow the law, but through mistake entered a void judgment instead of a valid one. Our Legislature, however, has made provision with respect to errors and mistakes in the administration of the criminal law in the following language:

"Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding nor any error or mistake therein shall render it invalid unless it shall have actually resulted in a miscarriage of justice." Comp. Laws Utah 1917, § 9365.

This section is sufficiently broad to cover a departure through error from the exact time of pronouncing sentence. The defendant suffers no injustice because he has not been made to suffer even the minimum punishment which the law prescribes for his crime, while a strict application of section 9041 to the circumstance of this case would result in entirely relieving the defendant from punishment for his crime and be a gross miscarriage of justice.

In the absence of statutory provision to the contrary, we must say, as was said in Beale v. Commonwealth, 25 Pa. 11, quoted with approval and applied to facts substantially the same as here, by Mr. Justice Field in re Bonner, 151 U.S. 242,14 S.Ct. 323, 327, 38 L.Ed. 149:

"The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed error in passing the sentence."

An error of the court in imposing sentence is regarded a correctible matter in Ex parte Lewis, 51 Mont. 539, 154 P. 713, wherein the court said:

"One of the chief purposes of all legal administration is the prevention of crime, by the due punishment of persons judicially ascertained to have been guilty of crime; and no person whose guilt has been judicially determined is entitled to immunity merely because the trial court having jurisdiction of him and his cause has made a mistake in a correctible matter. We say ``correctible matter' advisedly, because the imposition of sentence is such a matter. 8 R.C.L. § 239; note to 3 Ann. Cas. p. 1024 et seq."

All the decisions which we have found or which have been called to our attention based upon facts identical with or similar to the facts present in this case support the conclusion we have reached herein. These cases fall into two general classes: First, those where the question was considered on habeas corpus, and the court either assumed or decided that the trial court had not lost jurisdiction to resentence the defendant, and thereupon directed him held for the further action of the trial court, or the defendant was released without prejudice to further action by the trial court; and, second, cases decided on appeal from a judgment of resentence after the defendant had theretofore been released from custody under the void sentence. All such cases are directly in point, and support the view that the trial court, notwithstanding lapse of time, had jurisdiction to pronounce a valid sentence as provided by law. A leading case is the decision of the United States Supreme Court, In re Bonner,151 U.S. 242, 14 S.Ct. 323, 326, 38 L.Ed. 149. There the defendant attacked by writ of habeas corpus a sentence of the United States District Court imposing imprisonment for a year in the state penitentiary. The sentence was declared void and the defendant released, but without prejudice to the United States to take lawful measures to have the petitioner sentenced in accordance with law upon the verdict against him. Seven months had passed, during which he was incarcerated under the void sentence. The court, speaking through Mr. Justice Field, said:

"Much complaint is made that persons are often discharged from arrest and imprisonment when their conviction, upon which such imprisonment was ordered, is perfectly correct; the excess of jurisdiction on the part of the court being in enlarging the punishment, or in enforcing it in a different mode or place than that provided by the law. But in such cases there need not be any failure of justice, for, where the conviction is correct, and the error or excess of jurisdiction has been as stated, there does not seem to be any good reason why jurisdiction of the prisoner should not be reassumed by the court that imposed the sentence, in order that its defect may be corrected. * * *

"Some of the state courts have expressed themselves strongly in favor of the adoption of this course, where the defects complained of consist only in the judgment, — in its extent or mode, or place of punishment, — the conviction being in all respects regular. In Beale v. Commonwealth, 25 Pa. 11, 22, the Supreme Court of Pennsylvania said: ``The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence. If this court sanctioned such a rule, it would fail to perform the chief duty for which it was established.'

"It is true that this language was used in a case pending in the supreme court of a state on writ of error, but if then the court would send the case back to have the error, not touching the verdict, corrected, and justice enforced, there is the same reason why such correction should be made when the prisoner is discharged on habeas corpus for alleged defects of jurisdiction in the rendition of the judgment under which he is held. The end sought by him — to be relieved from the defects in the judgment rendered to his injury — is secured, and at the same time the community is not made to suffer by a failure in the enforcement of justice against him."

This rule was followed in Bryant v. U.S., 214 F. 51, 53, a decision by the Circuit Court of Appeals, Eighth Circuit, wherein, on appeal, the court affirmed a corrected sentence by the district court after the prisoner had been released on habeas corpus from imprisonment under a void sentence. The appellant urged lack of jurisdiction in the court to impose a corrected sentence on grounds of double jeopardy and lapse of time. The court said:

"The objection of double jeopardy for the same offense is made. It is well settled that it is not double jeopardy to resentence a prisoner who had his first sentence vacated by writ of error (Murphy v. Massachusetts, 177 U.S. 155,20 S.Ct. 639, 44 L.Ed. 711), nor to retry him on a new indictment after a prior indictment, conviction, and sentence have been set aside in a proceeding in error (Ball v. United States, 163 U.S. 662,16 S.Ct. 1192, 41 L.Ed. 300). The principle of such cases is that a sentence that has been vacated by the action of a prisoner cannot then be put up by him as an obstacle to the futher administration of justice; and we think it immaterial that his attack was collateral, as by habeas corpus, instead of direct, by appeal or writ of error. Here he was the actor, and the result left his conviction unimpaired. * * *

"Had his attack on the sentence been direct, clearly jurisdiction would have been retained after the expiration of the trial term, and in sound reason the case should not be different where the attack is collateral. Otherwise it is plain that a gross miscarriage of justice could be accomplished by mere delay of habeas corpus until adjournment of the term at which sentence was imposed. If the first sentence be regarded as having been wholly vacated at the instance of Bryant, the case would then stand upon trial and conviction without sentence, in which view jurisdiction of the unfinished business would remain."

The rule was again followed in Hammers v. U.S., 279 F. 265, 266, a decision by the Circuit Court of Appeals, Fifth Circuit, on appeal from a corrected sentence after the defendant had been released on habeas corpus from imprisonment under a void sentence and resentence a year and five months after plea of guilty. The court said:

The imposition of a void sentence is not an obstacle to the assumption by the court which imposed it of jurisdiction of the convict, in order that a legal sentence may be imposed. Where there is a conviction, accompanied by a void sentence, the court's jurisdiction of the case for the purpose of imposing a lawful sentence is not lost by the expiration of the term at which the void sentence was imposed. The case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence.

"If the invalidity of the sentences had been directly attacked, clearly jurisdiction would have been retained after the expiration of the trial term. In sound reason the case should not be different where the attack is collateral. One duly convicted, but not sentenced as authorized by law, cannot defeat the court's incompletely exercised jurisdiction over him by attacking a void sentence in habeas corpus proceedings instituted after the adjournment of the term at which such void action was taken.Bryant v. United States, 214 F. 51, 130 C.C.A. 491.

"This is not a case of a court losing jurisdiction to resentence as a result of a previous imposition of a valid punishment, to which, in whole or in part, the convict was subjected. Hammers was not punished twice for the same offense."

In each of the following cases, on attack by habeas corpus, the appellate court, after declaring the sentence void, remanded the applicant to the trial court for imposition of a lawful sentence, after valid conviction upon verdict of the jury or plea of guilty, upon the theory that such court had jurisdiction to impose a valid sentence notwithstanding lapse of time. We have indicated the time between sentence and release where such information is obtainable from the decision. State ex rel.Petcoff v. Reed, 138 Minn. 465, 163 N.W. 984 (3 years 8 months); State v. Pitcher, 164 La. 1051, 115 So. 187 (7 months); Halderman's Case, 53 Pa. Super. 554 (2 or 3 years); Com. v. Ashe, 293 Pa. 18, 141 A. 723 (1 year 3 months); In re Harris, 68 Vt. 243, 35 A. 55 (nearly 3 months); Ex parte Lewis, 51 Mont. 539, 154 P. 713; Ex parte Howard,72 Kan. 273, 83 P. 1032; Johnson v. State, 81 Fla. 783,89 So. 114; Hampton v. Orme, 92 Fla. 412, 109 So. 455; Ex parteSimmons, 73 Fla. 998, 75 So. 542 (10 years 7 months); In reWilliamson, 116 Wn. 560, 200 P. 329; Mahler v. Eby,264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549.

The California Supreme Court has uniformly upheld the jurisdiction of the trial court to reassume jurisdiction of a defendant released on habeas corpus because of a void sentence, and thereafter to pronounce a valid sentence, and also to itself set aside such void sentence and by its own process bring the defendant before it for imposition of a valid sentence notwithstanding the lapse of time. In re Lee, 177 Cal. 690, 171 P. 958, a decision of the Supreme Court of California, the petitioner, on habeas corpus, was released from imprisonment under a void sentence, but there had been a valid conviction, and the prisoner was remanded for sentence by the trial court. He had been sentenced to an indeterminate term, but, because the crime had been committed before the passage of the Indeterminate Sentence Act, it was held he should have been sentenced to a definite term. Section 1191 of the Penal Code of California as heretofore stated, provided for pronouncement of sentence within a limited time after verdict. The court held, however, that this section had no application to this kind of a case where sentence, although void, had been imposed. There five months had elapsed between sentence and release on habeas corpus. People v.Booth, 37 Cal.App. 650, 174 P. 685, is a decision by the District Court of Appeals, Third District. The defendant had been sentenced to an indeterminate term, but, after the decision of In re Lee, supra, he wrote the trial judge calling his attention to that decision. The trial court, although defendant had served six months of the sentence, brought the defendant before it, vacated the indeterminate sentence as void, and pronounced a definite sentence. From this judgment the defendant appealed. The court affirmed the sentence holding that the trial court had not lost jurisdiction to pronounce a valid judgment. Thereafter the same defendant sought to be released from the corrected judgment by applying for a writ of habeas corpus, but the writ was denied in re Booth, 44 Cal.App. 660, 186 P. 841. People v. Scott,39 Cal.App. 128, 178 P. 298, is an appeal from a corrected sentence. The defendant was first sentenced to an indeterminate term and commenced serving his sentence. Eight months later he was brought before the court and resentenced to a definite term; the first sentence being void. He objected to the court's jurisdiction, and on appeal urged that the time fixed by the statute for the passing of sentence had lapsed, and that he was entitled to a new trial; also that the court had lost jurisdiction because he had partly served the void sentence. The court held against him on both propositions. In re Fritz, 179 Cal. 415,177 P. 157, the Supreme Court, on habeas corpus, declined to hold void a corrected sentence for a definite term imposed ten months after conviction, where the trial court, the indeterminate sentence being void, brought the defendant before it and imposed a sentence for a definite term. In re McCready, 179 Cal. 514,177 P. 459, the Supreme Court reaffirmed the procedure approved in re Lee, supra.

In People v. Gibson, 45 Cal.App. 770, 188 P. 603, the de-defendant was convicted of rape. On appeal, the conviction was affirmed. Thereafter on habeas corpus proceedings the sentence was declared void because indeterminate when it should have been definite. This question had not been raised on his appeal. He was remanded to the trial court, where a definite sentence was imposed. He then appealed from the corrected sentence, and urged that the sentence was void, for the reason that defendant had been put twice in jeopardy for the same offense, and because sentence had not been passed within a reasonable time after conviction. The exact time which had elapsed between conviction and imposition of corrected sentence is not shown, but it is apparent that two or three years must have passed. The court held against appellant on all his contentions. Petition for review of the judgment of the District Court of Appeals was denied by the Supreme Court. 45 Cal.App. 770, 188 P. 603. See, also, In reGermino, 38 Cal.App. 497, 176 P. 701; In re Nichols, 82 Cal.App. 73,255 P. 244; Ex parte Colford, 68 Cal.App. 308,229 P. 63; Ex parte Smith, 152 Cal. 566, 93 P. 191.

The defendant has cited and relies upon the following cases:People v. Blackburn, 6 Utah 347, 23 P. 759, 760; In re Flint,25 Utah 338, 71 P. 531, 532, 95 Am. St. Rep. 853; Roberts v.Howells, 22 Utah 389, 62 P. 892; Reese v. Olsen, 44 Utah 318,139 P. 941; Ex parte Lange, 18 Wall. (85 U.S.) 163,21 L.Ed. 872; Com. v. Morgan, 278 Pa. 395, 123 A. 337; Mintie v. Biddle (C.C.A.) 15 F.2d 931; U.S. v. Wilson (C.C.) 46 F. 748; People v. Drysch, 311 Ill. 342, 143 N.E. 100; Gillespie v. Walker (C.C.A.) 296 F. 330; People v. Leinecke, 290 Ill. 560, 125 N.E. 513; Smith v. State, 188 Ind. 64, 121 N.E. 829, 3 A.L.R. 999; Ex parteCox, 3 Idaho 530, 32 P. 197, 95 Am. St. Rep. 29; Ex parteGarrity, 97 Cal.App. 372, 275 P. 480; Smith v. Dist.Court, 132 Iowa 603, 109 N.W. 1085, 11 Ann. Cas. 296. These cases involve either indefinite suspension of execution of sentence, or the indefinite postponement of sentence, or a sentence partly valid and partly void, and are not in point, since the questions therein decided are entirely different from the question now before us. They rest on entirely different facts, and are supported by reasons that are not applicable here. A reference to the Utah cases cited will be sufficient to show that these cases cannot avail to support the appellant's contentions. In People v. Blackburn, supra, a defendant was convicted of the crime of involuntary manslaughter, a crime punishable by imprisonment for a term of not to exceed five years. On the day fixed for sentence, the defendant moved the court that sentence be indefinitely suspended during good behavior. The court made an order, reciting that good and sufficient reasons were made to appear therefor, granting the motion and indefinitely suspending sentence during good behavior. A few days later the judge who tried the case and made such order resigned. After his successor took office, the district attorney moved for an order appointing a time for passing sentence. This motion was denied. The district attorney then sought from the Supreme Court a writ of mandate directed to the defendant district judge requiring him to proceed to judgment and sentence. This court, while implying that the trial court would ordinarily be required to impose sentence, denied the writ for other reasons stated as follows:

"While we have no doubt, as before stated, that it is the duty of the court in which a conviction is had to proceed to judgment within the limits prescribed by law for the exercise of its discretion, and that it cannot rightfully exercise the pardoning power by refusing judgment, but that, where the statute prescribing the punishment for a crime only fixes a maximum punishment, thereby expressly authorizing the court, in its discretion, to fix any degree of punishment from such maximum down to a purely nominal punishment, and it is apparent from the record that the court, in the exercise of such discretion, has determined that the lowest possible punishment should be inflicted, the failure of the court to pass judgment is more a matter of form than of substance. The mandate of this court would only require the performance of a technical duty. For this reason we do not think we are called upon to interfere by issuing the writ asked for. The writ should be denied."

In re Flint, supra, this court held that the trial court had no authority to indefinitely suspend the imposition of sentence, since it was in effect an exercise of the pardoning power, and that "when the court suspended judgment indefinitely, and ordered the defendant discharged from custody, it no longer had jurisdiction over him, and all subsequent proceedings in the premises were unauthorized by law, and are therefore void." It is strongly urged that the Flint Case is in point, and therefore decisive of the question we are now considering, but the case rests upon a state of facts so different from the facts of the case at bar that it ought not to be controlling on us in reaching a correct solution of the question before us. The effect of that decision should be restricted to those facts, and not extended to another situation resting upon entirely different facts. The result of the decision in the Flint Case was to give effect to the order of suspension and the discharge of the defendant. This result usually does not follow the entry of a void judgment. The court did not say that the order was void, but held that the trial court divested itself of jurisdiction over the defendant and the case by the order of suspension and discharge of the defendant. This being true, it would undoubtedly follow, as was there held, that the trial court was without power to make another or different order or to thereafter pronounce judgment. There the trial court reached the conclusion that the defendant should not be made to suffer for his crime the punishment provided by statute, at least not presently or during good behavior, and thereupon suspended the imposition of sentence and discharged the defendant. Here the trial court concluded the defendant should suffer the punishment imposed by the statute, and attempted to pass sentence in compliance with the statutory mandate, but, because of an erroneous interpretation of the law, it imposed a void sentence. Nothing here was intentionally done by the court looking to the discharge of the convicted defendant. The reasons underlying the decision in the Flint Case, the cases cited therein for support, and the cases thereafter decided following the same rule, are pertinent to the facts of such cases, wherein sentence was indefinitely suspended and the defendant discharged, and explain and support the holding that the court in such cases lost jurisdiction to impose a valid sentence. These reasons are wholly foreign and inapplicable to the facts of a case such as this, wherein sentence was imposed, but, because of mistake, the sentence was void. The reasons given in those cases and by text-writers sufficiently indicate that they are inapplicable to this case. In 8 R.C.L. 251, the rule is stated as follows:

"In those jurisdictions wherein the rule prevails that a trial court has no power to grant an indefinite suspension of sentence, the court, by granting such suspension, loses its jurisdiction and cannot pronounce sentence at a subsequent time. In such case, having completed its judicial functions, it has voluntarily surrendered all further control over the case and person, and if the defendant is re-arrested is entitled to be discharged."

In Weaver v. People, 33 Mich. 296, 1 Am. Cr. Rep. 552, a case cited and relied upon in the Flint Case, it was held that sentence could not be imposed after an indefinite suspension of the imposition of sentence, for the reasons that such action signified that the court intended to let the offender go without punishment and was a practical abandonment of the prosecution. The court said:

"To sentence the prisoner to the penitentiary under such circumstances, and when the trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, but is overruling his decision. This we think not admissible, and the sentence was unauthorized, and the judgment must be reversed, and the prisoner discharged."

In U.S. v. Wilson (C.C.) 46 F. 748, also cited and relied on in the Flint Case, it was held in effect that the order for suspension of sentence and discharge, having been once made, could not at a later term be revoked. In Collins v. State,24 Okla. Cr. 117, 217 P. 896, 899, such action by the trial court was held to be "a practical abandonment of the prosecution." People v. Allen, 155 Ill. 61, 39 N.E. 568, 41 L.R.A. 473, cited and relied upon in the Flint Case, merely held that where the trial court fails to perform its duty but discharges the prisoner or permits him to go indefinitely it is practically an abandonment of the prosecution and its power and jurisdiction over him ceases and a subsequent sentence is without judicial authority. Other reasons are that the defendant ought not to be held "in fear of punishment which may or may not be inflicted at the pleasure of those in authority." State ex rel. Dawson v. Sapp,87 Kan. 740, 125 P. 78, 80, 42 L.R.A. (N.S.) 249. "To allow such power would place the criminal at the caprice of the judge," People v. Barrett, 202 Ill. 289, 67 N.E. 23, 63 L.R.A. 82, 95 Am. St. Rep. 230, or at the caprice of the prosecuting officer. Grundel v. People, 33 Colo. 191, 79 P. 1022, 108 Am. St. Rep. 75. In view that the facts are different and the reasons underlying the decisions are entirely inapplicable, the decision in the Flint Case ought to be restricted to the facts of that case and not be extended so as to be a precedent for any other case resting upon entirely different facts.

The other Utah cases cited by appellant are also inapplicable and furnish no support for his contention. Roberts v.Howells, supra, merely holds that a judgment which imposes imprisonment for nonpayment of a fine due the state, after the right to punish by imprisonment has been exhausted by completion of a jail sentence on the same judgment, is void so far as it attempts to imprison for nonpayment of such fine. Reese v.Olsen, supra, held that the court had no power to indefinitely suspend execution of sentence, and that the portion of a judgment suspending execution of the sentence was void and of no effect, but that the judgment of imprisonment must be executed. If that case has any bearing upon the instant case, it would support our conclusions, because by it the court holds that a void portion of judgment is ineffective for any purpose, and leaves the valid portion of the judgment as it was, subject to lawful proceedings to be taken as if the invalid part had never been rendered. The other cases cited by appellant fall into one or the other classifications heretofore discussed. These cases involve situations entirely different to the one here presented, and ought not to be followed or the implications arising therefrom extended to support a case like this where the facts are so entirely different.

The cited case of State v. Gray, 37 N.J.L. 368, is to the effect that, on habeas corpus, where the sentence is void, the defendant should be discharged, and that neither the appellate court nor the court below can pass a corrected sentence. On the latter point, the case seems not to have been followed, and is certainly against the great weight of authority.

We hold, therefore, that the district court had jurisdiction to pronounce a valid judgment upon the defendant when the sentence complained of was imposed on February 15, 1930.

The second point urged by appellant is that the court erred in refusing to allow him to withdraw his 3 plea of guilty before pronouncement of the corrected sentence on February 15, 1930. The motion was made by counsel in this language:

"Your honor, Section 8900 grants us power to at any time withdraw our plea and at this time the defendant withdraws his plea of guilty, and asks that a plea of not guilty be entered. I do not care to argue it."

The motion was resisted by the state upon the ground that the statute was not mandatory and that the court had discretion to refuse the demand. Comp. Laws Utah 1917, § 8900, provides:

"The court may at any time before judgment upon a plea of guilty permit it to be withdrawn and a plea of not guilty substituted."

Several other states have a similar statute. The overwhelming weight of authority is that this provision confers a discretionary power upon the trial court to allow or disallow the change of plea. State v. Walters, 48 S.D. 322, 204 N.W. 171;People v. Miller, 114 Cal. 10, 45 P. 986; State v.Powell, 153 Wn. 110, 279 P. 573; Cook v. State (Okla.Cr.App.) 281 P. 819; Penrod v. State (Okla.Cr.App.) 281 P. 160;People v. Dabner, 153 Cal. 398, 95 P. 880; People v.Cosgrove, 48 Cal.App. 710, 192 P. 165; Curran v. State,53 Or. 154, 99 P. 420. The general rule in the absence of statute is that it is discretionary with the court to permit, or to refuse to permit, a plea of guilty to be withdrawn for the purpose of interposing a plea of not guilty, and the court's discretion in the matter will not be reversed except for an abuse of discretion. 16 C.J. 397.

It was not made to appear that the defendant had entered his plea of guilty in ignorance of his rights or that he was influenced unduly or improperly either by hope or fear, or that it was entered by reason of mistake or misapprehension or undue influence. The motion was not supported by any allegations of fact which called for an exercise of discretion favorable to the request. There was no abuse of discretion by the trial court in refusing to permit defendant to change his plea.

The judgment and sentence of the district court of Salt Lake county is affirmed.

CHERRY, C.J., and EPHRAIM HANSON, J., concur.