In Re Fontino

California Court of Appeal Nov 27, 1933 No. Docket No. 1295.Published

Before: Plummer

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Holding. The trial court lacked jurisdiction to amend the petitioner's sentence to that of an habitual criminal because the prior convictions were not proven to include served terms and the court's jurisdiction to modify the original judgment was exhausted.

Issues

Whether the trial court had jurisdiction to amend a sentence to that of an habitual criminal without proof of served terms for prior convictions.
Whether a trial court has the power to recall a defendant and impose a heavier penalty after the original sentence has been partially served.

Disposition. Petitioner discharged

Quotations verified verbatim against the opinion

“It thus appears that the superior court had no jurisdiction to enter its purported amended judgment and re-sentence of the petitioner, as of March 23, 1933.”

“after rendering the judgment in the first instance, the jurisdiction of the trial court to thereafter modify its judgment was exhausted”

PLUMMER, J.

On the seventeenth day of March, 1928, the above-named petitioner was arraigned upon an information in the Superior Court of the County of Riverside, charging that on or about the fifth day of February, 1928, he

[467]

committed the crime of receiving stolen goods, a felony. The same information charged that the prisoner, on the twelfth day of April, 1925, had been convicted of the crime of burglary, and sentenced to a term of three years in the state penitentiary in the state of Oklahoma; also, that on or about the twelfth day of October, 1922, the defendant had been convicted of the crime of larceny and sentenced to a term of not over two years’ imprisonment in the state of Oregon. Thereupon the defendant was taken to and has been incarcerated in the state prison at Folsom.

On the twenty-third day of March, 1933, upon an affidavit of the district attorney alleging that the petitioner was not sentenced under the provisions of section 644 of the Penal Code, as an habitual criminal, the Superior Court of the County of Riverside, on the twenty-seventh day of March, 1933, entered an order purporting to amend its judgment theretofore entered in this cause, and sentenced the defendant to be incarcerated in the state prison, under the provisions of section 644,

supra,

as an habitual criminal.

The record further shows that upon being arraigned upon the information charging him with having received stolen goods, the petitioner entered a plea of guilty as charged in the information.

Section 644 of the Penal Code, so far as pertinent herein, provides: That every person convicted in this state, of any felony, who shall have been previously twice convicted upon charges separately brought and tried, and served a term in any state prison or federal penitentiary, either in this state or elsewhere, for a number of offenses specified, shall be sentenced as an habitual criminal.

The record shows that no proof was offered that the petitioner had ever served a term by reason of any of the previous sentences pronounced upon him, either at the time of the original sentence, or at the time of the purported amended sentence being pronounced by the superior court.

In Re Fontino

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PLUMMER, J.

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