People v. Kersten

WOOD (Parker), J.

Defendant pleaded guilty to a charge of burglary. The court determined the crime was. burglary of the first degree, and sentenced the defendant to imprisonment in the penitentiary. Defendant states that his appeal from the judgment is to modify the judgment to conform with a finding by the court that the crime was burglary of the second degree.

On April 3, 1941, defendant pleaded guilty and admitted the four prior convictions of felonies alleged in the amended information. Pronouncement of judgment was continued from time to time, at defendant’s request, in order that defendant might proceed further with the development of his alleged invention of an airplane propeller hub, which he claimed would be of great value to the government.

[173]

On January 15, 1942, when the case was on the calendar for judgment, after six continuances, it was stipulated (although defendant had admitted the prior convictions on April 3, 1941) that the court “might determine the allegations of the four prior convictions” from the probation officer’s report. The court found those allegations to be true. Thereupon the court announced in chronological order the proceedings that had occurred in the case up to and including a part of the arraignment upon the amended information, and then stated: “It was stipulated that the court was to determine the degree of the offense from the report of the probation officer. The court now determines it to be burglary of the second degree. ’ ’ Then the court completed its review of the prior proceedings, and asked: “Is there any legal cause why judgment should not be pronounced?” Counsel for defendant, after replying in the negative, made a statement concerning the defendant’s efforts to complete the invention, and asked for another continuance. The court did not finish the pronouncement of judgment, and granted a continuance to April 2, 1942. No minute entry was made concerning the degree of the crime. On April 2nd, the defendant was not present and an order was made that the undertaking of bail was forfeited.

On July 9, 1942, the defendant was brought into court, and preliminarily to pronouncement of judgment, the court stated: “Pursuant to the stipulation heretofore entered into the court fixes the degree of the offense as burglary in the first degree.” In pronouncing judgment the court said: “It is the judgment and sentence of this court . . . that for the offense of burglary, which the court has fixed as burglary in the first degree . . . that you be sentenced. ...” At that time, July 9th, it was not called to the court’s attention that the court had stated on January 15th or at all that the crime was burglary'of the second degree. A minute entry was made on July 9, 1942, that: “The court finds the crime to be burglary of the first degree. ...” A judgment was thereupon entered which included a recital, as follows: “Whereas the said . . . pleaded guilty ... of burglary . . . which the court found to be burglary of the first degree. ...”