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Show PAGE THURSDAY, MARCH 14, 1974 THE DAILY RECORD FOUR In The Supreme Court Of The State Of Utah State of Utah, Plaintiff and Respondent, FILED March 7, 1974 v. R'. Gary prior to the imposition of sentence, ttie defendant ii entitled 'to the benefit the lesser punishment. 13500 No. Saxton, Defendant and Appellant. of our new criminal code. conThe State argues that Section tains a savings clause which ' changes the law on this proposition. That section (2) provides: L. M. Cummings, Clerk Any offense committed prior to the effective date of this code shall be governed by the law, statutory and existing at the time of commission thereof, except that a defense or limitation on punishment available under this code shall be available to any defendant rried or retried after the, non-statuto- CROCKETT, Justice: Saxton seeks reversal of his conviction for passing a check ' for $250 without sufficient funds or credit in violation of Section U. C. A. 1953. Upon a trial to a jury, at which he was represented by'counsei, he was convicted of the offense on August 6, 1971. He was out on bond; and he failed to appear at the time set fur the imposition of sentence. A bench warrant was issued on August 2b, 1971, but the defendant could not be found. He was next heard of in May 1972, when rhe district attorney received notice that he was incarcerated in the Federal Correction Institution in Lompoc, California. Included therewith wa n request by defendant for disposition of the instant charge, and an offer by the federal authorities to deliver temporary custody for that purpose. Utah responded that this defendant had been convicted in the case, and requested notification of his release. , Gary . R. 76-20-- j "non-statutor- y" Defendant also argues that he was deprived of his constitutional right to This charge is unsupported be represented by competent counsel at his trial. except by his naked assertion, a charge so10 patently spurious as not to be worthy of comment, except to note and reject, it. v. scnoneia, 3. State v. Roderick, 9 Ariz.App. 19, 448 P. id Bl, by 5 (iwaj; 7 Ariz.App. 307, 438 P. 2d 77b, 784 (1968): 21 Am. Jur. 2d, Criminal Law, Sec. 385 (1965); 22 C. J.S. , Criminal Law, Sec. lib (1961), and cases and authorities cited -- 1 therein. Upon defendant's release from Lompoc he was returned to Utah and sentence of an indeterminate term of not to exceed five years in the Utah Jytate Prison was imposed. 4. 25 Utah 338, 71 P. 531 (1903). 5. See State v. Fedder, 1 Utah 2d 117. 262 P. 2d 753 (1953) and case 11H, cited therein. 6. 25 Utah 2d 230, 479 P. 2d 791 (iwn). 7. 26 Utah 2d 392, 490 P. 2d 334 (1971). U. C. A. 1953 (S':pu. ). 8. Sec. 9. Utah Constitution, Art. I, Sec. 12. 10. See comment inWhettonv. Turner, 28 Utah 2d 47. 497 P. 2d 856. In accordance with what we have said herein, the conviction is affirmbut the case is remanded for the purpose of imposing the proper sentence ed, No costs awarded. as stated above. Defendant essays the no: unfamiliar contention that there was not sufficient evidence to establish his guilt. Particularly, he argues that there was not evidence to show that thcte was not sufficient funds or credit with the Bank of Boise, Idaho, to cover his check. This seems to invite us to blind ourselves to the dishonored check, Related to this, he argues that he should have been given the benefit of the extradition of witnesses, procedure to have a vice president of the bank brought from Idaho to testify. If there had been any merit to defendant's contention that the testimony of a vice president of the Bank of Boise would have shown that he had sufficient funds or credit to cover the spurious check, there is no reason whatsoever why this could not have been done. While there is no transcript before us, it is obvious that any further exploration of this fact could have been done by correspondence or by deposition; .ind there is no indication that any such attempt was made. 76-1-1- WE CONCUR: A. H. Ellett, Justice R. L. Tuckett, Justice HENRIQD, Justice: Defendant contends that rhe Utah court had no jurisdiction over the offense; because proof of one of it essential elements, the insufficiency of funds in the Idaho bank, was c aside th state. The content ion is without The interstate agreement on detainers to which 1. This was an effort to invi-kUtah is a party, Sees. through 11, U. C. A. 1953 (Supp. ), which requires disposition of pending ch.trgpt within 180 days after demand. This which requires disposition of pending charges compares with Sec. one incarcerated within ms state within' 90 days of the request. against the U. C. A. 1953. 2. Sec. merit. The essential wrong in the passing of a. worthless check is the cheating and(defrauding of the payee. Tin occurred in Utah; and the Utah courts Tiave jurisdiction to deal with the offense, even though proof of some of the facts in the total scheme of the crime may extern into duolhcr ktate. 77-45-- ry, law "existing at the time of commission" of this crime The included the rule stated above: that if the penalty for a crime is reduced before sentence, the defendant is entitled to the lesser penalty. The fact that the final "except" clause confers further assurnnre that anyone "tried or retried" after the effective date of the act shall also have the benefit of a change to a lesser Inpenalty, should hot be regarded as depriving this defendant of that benefit. asmuch as the effective date of the code was July 1, 19738 and the defendant was not sentenced until July 31, 1973, he is entitled to the lesser sentence. January 1973, a motion was made on defendant's behalf that the Utah detainer against him be dropped and that the charge be dismissed because it had not been disposed of in the time required in accordance with his request. He is obviously not entitled to any relief in that regard. The request for disposition of charges pending against a prisoner relates only to retried charges; and is not purposed to provide relief after conviction. 77-65- Emphasis added, effective date. 11, In 77-65- of (Dissenting) I dissent. The author of the main opinion Qiiginally said in an opinion that is now changed, the opposite of what is now espoused, when he said: -4 "However, in the adopt ion of the new code, the legislature has deait with this problem in Section 76 by providing: -1 Any offense committed prior to the effective date of this code shall be governed by the law, statutory and existing at the time of commission thereof, except that a defense or limitation on punishment available under this code shall be available to any defendant tried or retried after the effective date. 13. non-statuto- ' defendant also raises the issue iiu, he trial court lost. juribdiction over him for purposes of this case because it released him on his own recognizance; .'hkJ because the imposition of sentenrt- - w.io indefinitely postponed. He relies on the case of In The Matter of Flint,' where the court in fact lost jurisdiction. Comparison will show that the facts in that case have very little resemblance to this one, and that it is not applicable here. It is true that Section U. C. 1953, provides that sentence be imposed within two to ten days after the verdict. This requirement has been held to be directory only. The time may be extended for the convenience of andor at the request of the defendant. More importantly, the defendant certainly cannot absent himself and prevent the imposition of sehter until after that time has expired, and then take advantage of his own wrong by in- "This defendant had been tried and convicted in August 1971 for an offense committed prior to that time. He has been neither 'tried nor retried' after the effective date of the new code which was July 1, 1973. Thus, according to the statute just quoted, his 'offense committed prior to the effective date of this code shall be governed by the law . . . existing at the time of the commission thereof . . . , ' and he was properly sentenced thereunder." " 77-35- -1, I concurred in the language quuted above, which better could not have been enunciated, and I think it is, always has been, and should be the law in cases like this, - so, - what must I do but dissent in this case, - which I do do in consonance with my convictions, - not knowing about or the reason for the turnabout, and I suppose should care less, if the majority of this court expouses it. sisting that the court is without jurisdiction to impose the proper sentence. Defendant challenges the sentence imposed on him of not more than five in the state prison as provided ir. Section U. C. A. 193, which years was the law at the time of the commission of the offense. He urges that he is entitled to be sentenced under the corresponding bad check statute in the newly adopted Criminal Code, Section (Pocket Supplement) which makes the offense a Class A misdemeanor with n penalty of imprisonment for not more than one year or a fine not exceeding $1,000. We have heretofore held in Belt v. Turner,6 and State v. Tapp, 7 that if the penalty for an offense is reduced 76-20-- 76-b-o- : ry, 11, Callister, Chief Justice, concurs opinion of Mr. Justice Henriod. 05 11. That this is the 132 P. 2d 130. correct procedure see Ex Parte Folck, 102Utah 470, , 1 1 in the views expressed in the dissenting 1 Judgments 6325; Knight Adjustment Bur oau -- vs. KENNETH KR0GH; Vievmont Dr. 4, 1974 1 4940 $182.86 to Mar pltf 63427; Knioht Adjustment Bur au -- VS- STEVEN G. BALIIF0RTH 4002 So. 1515 West; $35.01 to pltf.; Kar k, 1974 Interstate Collection 60718; -- VS- R. JOHN IIAKXLTON; Bryan Ave.; $508.18 War 5, 1974 -- VS- E. BRYAN; Dr. V. Jordan Mar 4, 197 CHARLES So. Hall $219.20 to pltf.; 7158 62233; Central Xnc. -- vs- PAULA Collections JACKSON 5 1708 Independence Blvd.; $310.00 to pltf.; Mar 4, 1974 Fetter's 63212; -- VS- So. State pltf. j Nov I $56.73 to $475.27 to Street; interstate collection GILBERT JOHN ANNIE ESPARZAi 1178 Dupont Ave.; Fixture Co. dba Restaurant It Store Equipment Co. -- vs- WILLOWS INN; 11357 L pltf.; Mar 5, 197 6322; Interstate Collection 27, 1973 -- VI- GLEN D. L BETTY JUNE BAILEY; IO65 Taffeta Dr.; $261.25 to pltf.; Mar 5, 197 63019; Credit Bureau of SLC M0NIKA COLBY -- vsDANIEL L. 839 Fairmont Cir. 4; $141.85 to pltf.; Feb 25, 197 t 632271 -- vs- Inters tats Collection CARL KERR; 1935 Lincoln St.; $115.5 to pltf.; to pltf.; Central Collections 61720; Inc. 1455 62309; Cabinet Murray City Court Salt Lake 63031; Loo Bishop VICTORS MOULTON; -- vs- Feb 20, 1974 197 JAY 1810 South 8th East; $115.00 to pltf.; . 63136; Inters tats Collection -- VSROBERT R. k JOANN DOLORS) JONES; 3555 West wood Dr. $353.23 to pltf.; Mar 5( 197 Mar 5 771 East 8600 South $127.00 to pltf.; Mar 5, 197 NELSON; 6327; Credit Enforcement Bureau, Xno. HARRY, $73.00 JR.; -- vs- GORDON E. 569 2nd Ave.; Mar 5, 197 to pltf.; ARCHULETA; $92.50 to 672 So. 6th East; Mar 5, 197 pltf.; 6321; Credit Enforcement Bureau, Inc.--vs- IAMS; 318 pltf.; - JOHN WILL- Post St.; $140.00 Mar 5, 197 63255; Knight Adjustment Bureau -- VS- HENDERSON E. a SHIRLEY F. ADAMS; 6l 6th Ave $118.36 to Pltf.j Mar , 197 63265: Utah Collections, Inc FRANK NUNLEY; 3257 Blue Ridge Dr., Granger; $189,2 -- VS- to 6328; Credit Enforcement Bureau, Xno. -- vs- pltf.; Credit, Enforcement Bureau, Xno. -- vs- JAMES L. MYERS, JR.; 5, 197 Mar 5 197 , 632791 -- vs- Interstate Collection GAEL FITT; 2606 South 8th East; $98.71 to Mar 5t 197 pltf.; 3679 LeeMauer, Granger; $70.00 to Mar pltf.; MICHAEL 2388 E. 3080 South Mar 5, 197 $209.00 to CALDWELL; 63251 ; 6320; Credit Enforcement Bureau, Inc. -- vs- ALFONSO to 6323; Credit Enforcement Bureau, Inc. --vs- EDWARD C. pltf.; 63252; Credit Enforcement Bureau, Xno. -- vs- RICHARD X. LARSEN; 17 So. 36OO Wst; $104.00 to pltf.; Mar 5t 197 63390; A. B. Dlek Co. BUTTERFXELD DEVIL PRESS; 3053 ft, BLUE Butterfieldi So. State or 1910 Brook-h- ill Dr.; Press i State; $276.5 to Mar , 197 3053 South pltf.j |