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Show POOR COPY THE FOUR PAGE f iili n - A- DAILY R r 0 C THURSDAY, OCTOBER ! P. 1, 1970 ' KOSUiLS hf.i him in the case, to which question the defendant replies that he had not any ( i.r.el and did not desire the aid of counsel." The appellant 1 Dprtrr-nt- : f - Cwtvryfrrw. An.-- ' f 8I d - , i j ttora Ifts. -- di.'l not testify ii tin ustant matter regarding whether lie had waived counsel or not 15 the- - pirnr u jal and made no denial of the lads as stated in the minute entry citvd above. Elis defense now is based entirely oh the minute entry v Ha - ' ... l fs. try:i A A- ;- -- - A rj ih iw tftaaMgp-y- y Ukfl . j Hm4 VMtini tert-- . So Hmi Bidder I P-- 7 ft- . , 4 9 V . . i. v.hii , I. . Th? writ of habeas corpus has traditionally. been used to secure the re-- lt ase of a person from wrongful detention. In this matter the appellant has long since served his term for the crime of injuring a public jail and was at r.o time njt.:iul herein being detained by any person. At the time of trial of the jpstir.c matter, the defendant stood convicted of two unreversed prior felonies. Mis status ut being an habitual criminal was thus established by p oof beyond a reasonable doubt. J.... i tfss S Cin e ! 'N Antal 4 Jt:siilci;7 If " 7 WhMltr RsfMvii: I JL Bidehr - t ; ue .1 an habitual criminal is a status and not a crime, no sentence iu of or . ng i :.i Tfw or.terr.e tor the cTime of arson in the second degree in this case hive been for a term of not leas than fifteen years in the Utah State prm.u. The e::ui' es as imposed are not proper. The matter is remanded to the trial r c urt with instructions to pronounce the correct sentence. The is otherwise affirmed. j .1 &a C4 -- uhoidcl f b; ? tf r; . h-i- i A hi :? ?!- court. Ili.--, v Cal Depcrhttefsh is hr fort? h "T CCWCIR VI-- - ip Allan Crockett, Chief Justice J. HmiUIr St&tei foltd Httn ft E. R. Callister, JUott f(W31 K. L. Tuckett, Justice Inn 9 BasWA v. F. Henri Henriod, Justice AltCST---' r'fibrk Aaartes In Hie buj ironic 01 The Shite Of Utah i-onrt T - Ve friiKi-r- Utah 2d No. 12038 FILED v. j'i'f . Tin 429 P. 2d 262 (1967)7 Utih, ! . t 1 September 28, : i' lAi.-s- , I'.Jsrif a Michael 10, Pi Amur ai d Respondent, State of Utah PI Jr., Justice : HI.MUDD. i . .Appellant. . 1970 L. M. Cummings, Clerk 0:: from an order revoking probation where defendant was granted edition after having been convicted of a felony. Affirmed. App-a- l ray 1 t i -a T! v aM ay cf matter of l -- execution obviously was to help defendant go straight, -P-- grace. tion, the trial court had granted a new trial, but vacated a;.i denied the motion, as the record reflects. Defendant v ; k.:i pr. nation, not by way of parole, but by stay of execution. The u rcimitwr f tii- stay of execution came after a hearing to show cause where witnesses, including defendant, were sworn, testified, and were subjected to r S iffice it to say that defendant's own testimony was no ciic-sto espouse the virtues of the Boy Scouts' oath, amrif' f an but p;.. .t;?led a:i evasion tantamount to an admission of grounds for proba- -t A:- in. w.ti p.j th.- - - ' - :.ii r ? :v o:: - ? . i:ig was corn-- T -. n j r . j 1 sheriff had called defendant on the phone. Defendant was the caller tcld his wife that other deputies were on their way with a rrant which vis not true. Apparently this was a maneuver to .rP h e.:r :s riir. il evidence of stolen goods. The deputy held sack on the a'.') lit fvn'bi nt 's wife came out with a basketful of items that had'been eputTv.i st.cii.r.. placed them in an open-be- d truck, and was stopped after clown e ii the !; d':' i road. The adult probation officer's affidavit (.ismik ' i :1 . for an order to show cause, stating that defendant p j r bis po.s session, amply seems to have been supported by i': :r ;!i.' i ,m. : ' b of ore.: of the -- inr-.vt- l i 3. Ac ct iminal 1 I ti.v i ssu-- : ... 1 r r . I the p,lai c : : matter ' . 1 arn-'- 'i b ar.dt.hi! al u : ! I:.. ir.g is 31 of a r -- c.:'. It is ::i'. i' s' .1 j " ' ' S. . : , - . w . .s t .1 1 e 1! it tl.e property in the truck unlawfully was seized that tlu hearing on revocation constitutionally was 1) tli rjet, u.d 2) s. pT 01 Ir vdvncc taken from the truck was not -- 0 against no effort to conceal the property orpre- ,f". Anyway, she na-.l' i.' it was in plain sight. ' 2): I) tendii.t oinplains about hearsay testimony and lack of '! : r.e-- xs, which, assuming them to have been technically it.i'i. i.iii li.r seme reason or another, certainly were not prejudicial r. vitho.rc is nothing in the case to indicate that the trial court relied I'iii r than significant believable circumstances in his Tcnowledge 'T. 1. v'i . 'ha! q.aite reasonably supported the exercise of what we be- ' i was ound discretion, in a matter that was not a trial, re- e j ' or aiiythir.g else other than a fair opportunity to show that the : m .id i.vt broken faith with the trial judge who conditionally be-- !Li1 i 1. u. tho case here. The defendant, on the contrary, was lei. i' ' rit1; 'ly, .. : r1 The . e 1 . j ferdant I the c t pre&ert a in this tin prior ' then u thidenied w : 1 m-i-- . i : ! . , I j.- v ' - . , '.vi: i : t o'. : j. .Viif Thl " ijii ,.. ! .1 a-- , - t : - - i.i-.- b. ft 1 1 , 1 t n-- . 3 ' I i.il. .. f 1 a-$- v 1 the bull-!well !.is. .! 1 ::-- of tin- b wood pj;-.- . The 1 r m. 1. ri',1 : 1 jail is 1 ,:i v : r ; II v. : e:l ; 1 ' - iti that the court had no jurisdiction to vacate its trial, lb cites Luke v. Coleman, 38 Utah 383, 113 P. in ). port of his contention. That case is not in point. In the dcicnu-ii.ut . ' urges his point nearly two years after he could have i 1' i u. lie did not do. whi:,h I;. was 1 v it furth.er. A- - r- :i 1. : - 1 ; 1' . t),:".. U. . . I t Crockett, Justice l ot ki ll, Justice i7 f iii,r:;i,i;-i1ruriTr7n,i7v- E. K. Callister, Jr., Justice A. II. Kllett p.7,r??tTi95,?)V 1. I |