State v. Thompson

549 P.2d 1292 (1976)

STATE of Oregon, Respondent,
v.
Stephen Duane THOMPSON, Appellant.

Court of Appeals of Oregon.

Argued and Submitted April 20, 1976. Decided June 1, 1976.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant was charged, tried by a jury and found guilty of two counts of robbery in the first degree, ORS 164.415, and one count of being a convicted person in possession of a concealable firearm, ORS 166.270. He was sentenced by the circuit court to a term of imprisonment not to exceed 15 years. He received an additional consecutive sentence not to exceed five years under the enhancement statute, ORS 166.230(1), for commission of a felony while in possession of an unlicensed concealable firearm. We reversed the five-year sentence imposed under ORS 166.230 (1) in State v. Thompson, 20 Or. App. 545, 532 P.2d 1140 (1975).

The circuit court thereafter entered an order (1) stating that defendant had previously been sentenced on one robbery count of the indictment, (2) imposing a 15-year concurrent sentence on the other robbery count, and (3) imposing a five-year consecutive sentence for the violation of ORS 166.270. Defendant states that the court erred by imposing the additional sentences.

Defendant contends that the original sentencing order was dispositive of all three counts. This is answered by our previous Thompson opinion. We stated that the "trial court * * * imposed sentence on the first robbery count only," At ___, 532 P.2d at 1141, and that "no dispositive order has ever been entered on the two counts on which the trial judge did not sentence the defendant." At ___, 532 P.2d at 1142. We noted that although the lower court erred in merging the three crimes, "we cannot correct that error in this proceeding." At ___, 532 P.2d at 1142.

Secondly, defendant contends that the new order violates the rule of State v. Turner, 247 Or. 301, 429 P.2d 565 (1967), prohibiting imposition of a more severe sentence after a successful appeal. Both defendant and the state incorrectly analyze this case as a Turner problem. In Turner the Oregon Supreme Court stated:

"* * * After an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence, such as in the Froembling cases [State v. Froembling, 237 Or. 616, 391 P.2d 390, cert. denied 379 U.S. 937, 85 S. Ct. 339, 13 L. Ed. 2d 347 (1964); Froembling v. Gladden, 244 Or. 314, 417 P.2d 1020 (1966)], and the defendant has again been convicted, no harsher sentence can be given than that initially imposed. If the initial sentence was incarceration, the defendant subsequently cannot be sentenced to any longer term than the time still to be served upon his initial sentence." 247 Or. at 313, 429 P.2d at 571. (Emphasis supplied.)

Here the case was not sent back for retrial. We simply set aside a sentence erroneously imposed under ORS 166.230(1).

State ex rel Gladden v. Kelly, 213 Or. 197, 324 P.2d 486 (1958), disposes of the issue raised in this case:

"* * * [A] [trial] court retains jurisdiction of a cause when the sentence passed is totally void. * * * But when a valid sentence, even though excessive in part, has been imposed, and when the time for granting a new trial or for taking an appeal has expired and the term has passed, the trial court is without power to deal further with the case." 213 Or. at 202, 324 P.2d at 489. (Emphasis supplied.)

In this case the judgment was only partially void, not totally void.

"``A judgment is wholly void where it is void in part and the part which is void is not separable, but it is generally held that the fact that a judgment is void in part will not invalidate a separable remainder of the judgment.'" Rightnour v. Gladden, 219 Or. 342, 354, 347 P.2d 103, 109 (1959). (Quoting from 49 C.J.S. § 450 Judgments p. 881.)

The enhancement penalty originally imposed on defendant was separable from the 15-year sentence. In the original Thompson opinion we pointed out that the state wanted to have the entire case remanded for resentencing even though it had not appealed.^[1] We did not do so. Rather, we set aside the sentence imposed under the enhancement statute and affirmed the remainder of the judgment.

The trial court should have simply vacated the five-year sentence imposed under ORS 166.230. It was without power to deal further with the case by imposing additional 15- and 5-year terms on the other counts.

Reversed.

NOTES

[1] As we noted in State v. Thompson, 20 Or. App. 545, 532 P.2d 1140 (1975), the state might have challenged failure of the court to sentence on the other counts, but it did not.