In Re Garrity

California Court of Appeal Mar 4, 1929 No. Docket No. 1767.Published

Before: Houser

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Holding. A trial court lacks jurisdiction to modify a criminal judgment to include an alternative of imprisonment for non-payment of a fine after the original judgment has been rendered. Such jurisdiction cannot be conferred upon the court by the defendant's stipulation or waiver.

Issues

Whether a trial court has jurisdiction to modify a sentence of a fine to include an alternative of imprisonment after the original judgment has been pronounced.
Whether a defendant can waive the trial court's lack of jurisdiction to modify a judgment by stipulation.

Disposition. remanded

Quotations verified verbatim against the opinion

“the court must exercise the discretionary power conferred by section 1205 of the Penal Code, when the original judgment is rendered, or else the power to make the direction therein provided for is lost.”

“after rendering the judgment in the first instance the jurisdiction of the trial court to thereafter modify its judgment was exhausted and that lack of jurisdiction in the matter could not be waived nor jurisdiction be stipulated”

HOUSER, Acting P. J.

Habeas corpus.

From the application for, and the return to, the writ herein it appears that following the conviction of J. W. Garrity of the crime

[373]

of conspiracy to violate the Corporate Securities Act (Stats. 1917, p. 673, as variously amended), and on October 31, 1928, judgment was pronounced by the trial court by which the said Garrity was sentenced to pay a fine of $5,000, with no alternative for the payment of such fine. Although the record herein does not disclose the fact, it is conceded by respective counsel that at the time of the conviction of the defendant of the said crime of conspiracy he was also convicted of the commission by him of certain other offenses, as to which, under certain specified conditions, the execution of the judgment was suspended; that after judgment had been pronounced by the trial court, and pending an investigation relative to a decision by the trial court as to whether “probation” (or suspension of the judgment) should be granted to the defendant as to his conviction of the charge of conspiracy, a stipulation was entered into between counsel respectively representing the defendant and the prosecution to the effect that a delay by the trial court beyond the statutory period in reaching a conclusion as to the matter of “probation” for the defendant, would in nowise affect the power of the court in the premises. In that connection, attention is directed to the fact that the return to the writ herein contains a record of the minutes of the trial court of date December 6, 1928, in substance that as of that date, “by stipulation, matter of probation and sentence is reopened. . . . Further hearing on probation and sentence is continued to December 20, 1928, at 10:00 A. M. If fines of $5,000 each are not paid by December 20, 1928, the defendants shall be remanded to the Sheriff of Los Angeles county to be confined in the county jail until paid out at the rate of $8 per day. By stipulation, any irregularity in sentence is waived.”

On December 20, 1928, among other things, the minutes of the trial court contain the following: “ . . . Defendant J. W. Garrity is committed to the custody of the Sheriff of Los Angeles county until his fine of $5,000 is paid, or until it is paid at the rate of one day for each $8 of fine not paid.”

By section 14 of the Corporate Securities Act (Stats. 1917, p. 673, as variously amended), any one of several penalties therein proyided may be imposed for the violation of

In Re Garrity

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