Opinion
No. 4947.
Submitted September 7, 1961.
Decided December 27, 1961.
1. While the courts of this state have the power to suspend either the imposition or the execution of a criminal sentence, a court, having suspended sentence and upon a subsequent conviction ordered the respondent to serve only a portion of such sentence, may not after his release order the respondent upon a third conviction to serve the remaining portion of the previously imposed sentence in the absence of statutory authority.
2. In the absence of statutory authority, a prisoner is entitled to serve his sentence continuously and is not required to serve it in installments.
Transfer to the Supreme Court of questions of law from the Farmington municipal court under RSA 502:24. The transferred case allowed by Nute, justice of the Farmington municipal court, is as follows:
"Carl Valrand was arrested July 9, 1960, on a charge of brawling and, on July 15, 1960, following a plea of guilty, was sentenced by the Farmington Municipal Court to pay a fine of $25.00 and serve six months in the House of Correction, which latter sentence was suspended on good behavior, with a mittimus to issue on call. On September 2, 1960, Carl Valrand was again brought before the Farmington Municipal Court on a second charge of brawling and, after pleading guilty, was fined another $25.00. The mittimus of July 15, 1960 was invoked by the court and said Valrand was ordered to serve thirty days in the Strafford County House of Correction pursuant to it. Valrand served the thirty days and was duly released at the end of that time.
"On March 10, 1961, Valrand appeared before the Farmington Municipal Court on charges of being drunk and disturbing the peace and, after pleading guilty, was sentenced to serve thirty days in the Strafford County House of Correction. At the same time, the mittimus of July 15, 1960, was again called by the court so that Valrand would serve the remaining five months of the sentence of July 15, 1960 which had not been invoked previously. Valrand was committed to the Strafford County House of Correction and on or about March 20, 1961, he secured the services of Attorney T. Casey Moher who filed a motion for re-hearing. The motion was granted by the Farmington Municipal Court.
"At the re-hearing held March 31, 1961, Attorney Moher moved that the mittimus be vacated and the five months sentence pursuant to the mittimus be declared void on the following grounds:
"1. That the mittimus of July 15, 1960, having been invoked for thirty days and sentence served, could not thereafter be called for the service of the remaining portion of the sentence.
"2. That the provisions of RSA 607:12 prohibit the issuance of more than one mittimus on a suspended sentence.
"The motion was denied by the Court and the defendant duly excepted and requested that the case be transferred to the Supreme Court on the questions of law raised by the defendant's exception.
"On April 6, 1961, the defendant was released on his recognizance pending the transfer and determination of his bill of exceptions. All questions of law raised by the defendant's exception are hereby reserved and transferred to the Supreme Court."
Gardner C. Turner, Attorney General, and Frederic T. Greenhalge, Assistant Attorney General for the State.
T. Casey Moher for the defendant, furnished no brief.
The substance of the transferred question is whether a municipal court has authority to order that a suspended sentence be served in installments. In July 1960 the defendant received a six-months sentence to the house of correction which was suspended during his good behavior. In September 1960 for a second conviction of a misdemeanor, the municipal court ordered that he serve; thirty days of his previous six-months suspended sentence. In March 1961 for a third conviction of a misdemeanor, the court ordered the defendant to serve five months of his previous six-months suspended sentence. The validity of the five-months sentence is attacked by the defendant as an unlawful order and defended by the State as a lawful one. The question whether a suspended sentence may subsequently be subdivided or whether a municipal court may order that a suspended sentence be served in installments has not been decided in this jurisdiction. See Annot. 39 A.L.R. 2d 985 on the power of a court to impose sentence providing for intermittent incarceration.
From the earliest times in this state as a matter of practice and precedent it has been assumed that courts had the power to suspend either the imposition or the execution of a criminal sentence. Page, Judicial Beginnings in New Hampshire, 1640-1700, at page 114 (1959); Note, Suspension of Sentence, 30 Harv. L. Rev. 369 (1917). Whatever doubts may have existed elsewhere as to the historical basis for this judicial power (Ex Parte United States, 242 U.S. 27, 47), it has been consistently sustained in New Hampshire. Sylvester v. State, 65 N.H. 193; Philpot v. State, 65 N.H. 250; Carpenter v. Berry, 95 N.H. 151; Chute Bell, Crime, Courts and Probation, 67 (1956); Orfield, Criminal Procedure from Arrest to Appeal, 582 (1947).
The statutory development of provisions for criminal sentences has confirmed the common-law power of the courts to suspend either the imposition or the execution of a sentence. The probation statute specifically provides that any court "shall have power to suspend imposition or execution of sentence, or any part thereof, and to place the defendant on probation for a period not to exceed five years." RSA 504:1. See Grinnell, The Common Law History of Probation, 32 J. Crim. L. Criminology, 15 (1941), reprinted in 45 Mass. L. Q. (No. 3) 70 (1960). See A. L. I. Model Penal Code, (Tentative draft No. 2) s. 6.02, comment at p. 18 (1954). Independently of probation, another statute confirms the power to suspend sentence in case of misdemeanors. RSA 607:12. This statute reads as follows: "SUSPENDED SENTENCES. When, in case of a misdemeanor, execution of a sentence to the house of correction is suspended or the case is otherwise filed, a mittimus for the service of the sentence may be issued within three years from the date of the sentence and not thereafter." None of the cases or the statutes mentioned above make any provision for intermittent incarceration, or provide that a suspended sentence may be subdivided or served in installments.
The general rule is that a prisoner is entitled to serve his sentence continuously and is not required to serve it in installments in the absence of statutory authority. McDonald v. Lee, 217 F.2d 619 (5th Cir. 1954). See Tappan, Crime, Justice and Correction 423 (1960). This may be small comfort to the misdemeanant but there is no existing authority, statutory or otherwise, which authorizes a court to subdivide a continuous sentence of six months into two parts, three parts or six parts. It is conceivable that such a power would be praiseworthy penology but it should be exercised under a comprehensive statute or rule of court which would give some advance notice to the defendant that the power exists. See State v. Bigelow, 76 Ariz. 13. Cf. A. L. I. Model Penal Code (proposed final draft no. 1) s. 6.02 (1961); The "Huber Law" in Wis. Stat. s. 56.08 (1959) noted in Ohlin Remington, Sentencing Structure: Its Effect Upon Systems for the Administration of Criminal Justice, 23 Law Contemporary Problems 495, 498 (1958).
Since the municipal court had no authority in the present case to require the defendant to serve his six-months suspended sentence in installments of one month and five months, it follows that the latter order for the five-months imprisonment is of no effect. See Scalia v. United States, 62 F.2d 220 (1st Cir. 1932). The defendant is not required to serve the five-months sentence.
Remanded.
All concurred.