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Show PACE EIGHT THE DAILY FRIDAY, JANUARY 22, 1971 RECORD T term of not to exceed five years in the Utah State Prison. After the plaintiff's incarceration in the Utah State Prison, he filed a petition for a writ of habeas corpus, which petition was denied in the court below. On appeal the plaintiff seeks a reversal upon two grounds: (1) the plaintiff was sentenced under the wrong statute; and (2) the district court imposed a dual punishment upon the plaintiff in excess of that provided Pltf$100.94; bsl - 37815 Pltf$532.98; 120 due Comae rclal vs Collection 37504 - Beneficial Industrial Loan Corporation vs RICHARD Co JERRY LYNN NIELSON AND MRS. JERRY LYNN NIELSON; At the time the information was filed against the plaintiff, Section U.C.A. 1953, provided that the offense there dealt with was punishable by imprisonment in the county jail for not more than one year, or in the State Prison for not more than five years. The plaintiff claims that the court's order of probation requiring him to serve six months in the county jail was in effect a sentence pursuant to the statute and that he could not thereafter be sentenced to be incarcerated in the State Prison. It is 76-20-- HASH AND MRS. HASH JENNINGS JENNINGS by statute. 34480 - National Chemsearch Corp vs G. A. L. CONSTRUCTION CO. INC - Spelgel, Inc. vs 37814 bal $11,20; $176.13; 120 It is noted that the 76-20-- 11, Pltf$690.00; bal due - May Department Stores Co ROBERT L. PORTER AND ARVILLA PORTER bal ELECTRONIC 37819 - Capri Upholstered Furniture Mfg. Co. Inc. vs Pltf$588.49; bal support 17402 UNLIMITED V. LUFO FRANK Co 120 - 37071 Kano & ALEXANDER PRZYBYLA; Pltf$882.22 DAVID BROWN AND MRS. Pltf$330.23; $9.60 BROWN; 120 37377 EDUARD Lake Auto Wrecking 197408 rrrrrr ato LEE R. C0ULS0N AND MRS. LEE COULSOH; $10.40 37454 - Gene's 66 O'BRIEN; Pltf$115.50 Service vs 37457 - Phillips Petroleum Co. vs Pltf$233.05 NIELSON; $6.40; 120 - Husky Oil 34086 EARL C. 2 ANTHONY 120 - Hafer's Inc. vs 35948 DUDLEY TRUCK dba HAROLD Pltf$155.02 - Robert E. McConaughy, III Cal.-Rptr- . E. ELLEN RUTH LUCEDO STAN LUCEDO; $9.00; 120 33454 TOM IVESTER DBA The main opinion must concede that the defendant is compromising this the simple device of absenting himself, in complete defiance of his conditions for probation, from appearance at court on the date for his agreed which was sentence, Ion; before the effective date of the statute that he now invokes. This, with due apology to my learned colleague, Mr, Justice Tuckett, and with due respect for Mr. Cahoon, appointee of the court, who has spent a good deal of time on this case. ihere is no justification for the main opinion in this case, unless we ever rule State v. Miller, supra, or indulge in that sweet but forbidden luxury ol legislating. Mr. Richard Cahoon deserves our thanks for his uncompensated efforts in assisting the defendant and this court, but incidentally disagreeing with this dissent. , concurs in the dissenting opinion of Mr. Justice 197413 - First Utah vs U. JAY $2,441.88; and Security Bank of ROUSH; Pltf return of truck Pltf$990.46; DECELLE; IVESTER'S USED Pltf$191.48; $7.80; 120 1-- 33162 34983 - Gulf Oil Corporation vs RICHARD R. MARTIN AND MRS. RICHARD MARTIN; Pltf$471.03; $9.00 120 36707 - Beulah Naylor vs HENDERSON; 120 36632 SON; Dial 93.3 KIM Pltf$102.87; $13.20 Kwho-F- M - Judy Ballard vs BOYD Pltf$931.08; $11.40; 120 SAMP- Where Thousands 37318 - Ada C. Hansen vs CLIFF E. EMERICK; Pltf$178.95 $6.80; 120 33534 - Max Becks tead vs INC. Callister, C.J. JIM 197416 - Salt Lake Police Mutual Aid vs PHI SIGMA KAPPA FRATERNITY 5; AND JOHN DOES PI tf$35, 970.50 damages Rubber Corp. vs - Calvin Johnson dba Johnson Collection Agency vs RAYMOND J. FERNANDEZ vs Kennecott Copper Company garn. $94.48; garn judg 120 by Pltf$10,000; $5,000 $275.00; note - t Earl Blackburn vs DENISE CARS Miller controls here. Mr. Justice Tuckett concurred in that case, which dispelled any concern about the applicability of this case to criminal responsibility. That case, except for time of sentencing, is identical to this. 197412 DINKLEY; 197415 - Claremont Savings Bank vs THEODORE DECELLE AND Lets vs AND Jjbiife: (Dissenting) v. SELLEY Pltf$625.28; legal services Pltf$301.91 - Inland L. 197414 - Martin, Chapman, Martin and Lyons vs TROY G. SAXTON; 120 - Robert COURTNEY $5,000; pers Injury John M. Wallace, Jr. and M. Walker Wallace vs PETER M. TOLY ?ltf$182.88; $11.60; $75.00 35422 - Peter Lawrence Assoc. Pltf$177.46; $70.00; note $8.20; $50.00; 120 J. Allan Crockett, Justice Pltf$978.30 CAROLINE A. GREER; 197411 ROADRUNNER SERVICE; 197410 - Sproul Realty & Investments Inc. vs ROBERT N. GREER AND Inc. vs EARL C Pltf$159.29; $9.60 ANTHONY; $412.35; $1,228.33 $126.00; $250.00; agreement Company vs AND MRS. HOU- S- "jus keeper 197 2j of the Pi. siding Bishop of Church of Jesus Christ of L. D. S. vs DON CARTER AND KATHERINE CARTER; $100.00 $1300.00; $368.33; and restitution ltf$49.85; LARRY JUNIOR tt va-at- Plti$5,200; note - Phillips Petroleum Co. MERILEE AND - Continental Bank and Tr. Company vs FURLESS ROGER LEWIS MUSIC STUDIOS $6.40; 120 - Continental Bank and $548.40; $1488.33; note - Moore Business Forms 120 and $250.00; and Co. vs ROBERT J. MUSICK JEAN C. MUSICK; Pltf$6500.00 Fltf$76.85; $7.00; 120 vs Pltf$240.00 JONES; Trust Pltf$268.27; $7.40; 120 37452 10; $250.00; damages AMERICAN AUTO WRECKING 37451 $ 705. mo 197407 - Salt (for 197406 - Ford Motor Credit Co. vs Arthur j. weeks; pitf$i,ooo $300.00; possession of auto and 37248 - Phillips Petroleum Co. vs DALE GOLD JOHNSON READY MIX trebled restitutuion Pltf$25.05; 120 EDWARD DALE Pltf AND JEANETTE per - Salt Lake City vs 37085 BELL; INC. 197405 - United Bond and Finance Corporation vs JAMES LEROY JONES AND MRS. $7.60; 120 vs INC ; CO. Nursery vs Seo PRZYBYLA Alfred Buranek vs writ of mandate) bal due ALEXANDER vs -- SEAL INTERNATIONAL, Corporation vs Pltf$108.62; $7.60; V. LUPO; Pltf$250.00; $1,000; 197404 - Southwestern Petroleum FRANK AND MRS. F. W. PULHAM AND B. $15,000; pers Injury - Sierra Pacific Power 37068 vs Mae Red fie Id vs REDFIELD, SR. - George Provol vs MARGARET PULHAM; Judgments City Court WE CONCUR: Henriod. SERVICE & 197403 34670 court BUYERS INC; Pltf$128.85; bal due r Stat- due - United Factors Co. Inc. vs This application of statutes reducing punishment accords with the best modern theories concerning the functions of punishment in criminal law. According to these theories, the punishment or treatment of criminal offenders is directed toward one or more of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender bo that he may not harm society and (3) to correct and rehabilitate the offender. There is no place in the scheme for Iw-its own sake, the product simply of vengeance or retribution. (See Michael b Wechsler on Criminal Law and its Administration 1940 , pp. 1; Note, 55 Col. L. Rev. , pp. A 1052.' 1039, legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts. HENRIOD, - Susan 197401 BILL BENNIE L. ' remain aware that where an improper sentence has been imposed, the correct procedure is to remand for the imposition of the correct sentence. Nevertheless, in the instant case we note that the plaintiff appears to have served longer time than the statute prescribes for the offense of which he was convicted. We have confidence that the trial court will be aware of the time already served under, the improper sentence and are certain that he will make due allowance therefor when he imposes the sentence now required by law. EARL CALL DBA MASTER CRAFT UPHOLSTERY 37820 The New York Court of Appeals had this to say in a case similar to the one before us: T. -- People v. Oil vn r , 1 N. Y. 2d 152, 151N.Y.S. 2d 367, 134N. E. id 197; In Re Estrada, 48 Cal. Rptr. 172, 408 P. 2d 948; In Re William J. Daup, 48 181, 408 P. 2d 957. 2. Foltk v. Watson, 102 Utah 470, 473, 132 P. 2d 130. Pltf$251.25 CORPORATION; 68-3-- A. H. Ellert, Justice 197400 vs DEVELOPMENT bal due the time the act became effective. The Attorney General calls our attention U.C.A. 1953, which provides as follows: to the provision of Section 5, I The repeal of a statute does not revive a statute previously repealed, or affect any right which has accrued, any d;.y imposed, any penalty incurred, or any action or proceeding ccmmenced under or by virtue of the statute repealed. V It is .d.oubtful whether the general language of this section was intended to apply to criminal statures and in any event in this case no penalty was incurred untii the sentence was pronounced. We - Earl McKinnon Morgan N. DORIUS, dir. of Driver's License Dlv. etal (restraining order of revocation of driver's license) - Hamilton Electro Sales 37818 District Court Suits Pltf$121.37; U.C.A. 1953, failed to make any provision as to the disposition of cases pending at $142.18; $6.80; $64.06; 120 37817 vs Pltf R. SPALL; KATHRYN vs There is merit to the plaintiff's contention that he was sentenced under the wrong statute. After the plaintiff had entered a plea of guilty to the charge made against him and prior to the imposition of sentence in this matter, the legislature amended the law so as to provide that the offense here charged against the plaintiff is punishable by a fine or by imprisonment in the county jail for not more than six months. A new policy having been adopted by the legislature concerning the punishment for the offense we are here concerned with it should inure to the defendant's benefit even though the offense had been committed prior to the amendatory legislation and prior to the plaintiff's entry of plea. amendment to Section - Calvin Johnson dba Johnson Collection Agency vs 37281 TANK AND MANUFACTURING WESTERN CO; quite plain from the record that the trial judge at the time he placed the plaintiff on probation made a condition for confinement in the county jail as 'a part of a program of rehabilitation rather than a sentence under the statute above referred to and it was therefore an exercise of clemency on the part of the court. 1969 - Allegheny Coupling Co. 37816 Pltf$478.78 M. ARTHUR 11, vs MARJORIE M. ALLRED AND ALLRED; ALLRED, Pltf$759.85 due City Court Judgments Court Suits-C- ity AND SEAFLITE CORPN; listen to BOATS Pltf $771,36; $11.40; against Seafllte Corporation 120 i every day! |