State v. Gerrard

MAUGHAN, Justice

(dissenting):

For the following reasons, I dissent.

Defendant entered a plea of guilty to the crime of rape before the district court judge, who directed defendant to the board of corrections for a ninety-day evaluation. Shortly thereafter, defendant attempted to escape from the courtroom. The judge recalled the defendant to appear before him the afternoon of the same day, rescinded his order for the ninety-day evaluation, and sentenced defendant to prison for a term of one to fifteen years. On appeal, defendant urges the judge below abused his discretion in rescinding the evaluation order. We should reverse and remand. All statutory references are to Utah Code Annotated, 1953, as amended.

In referring defendant originally to the division of corrections for the ninety day evaluation, the judge acted pursuant to section 76-3-404, which in relevant part provides:

(1) In felony cases where the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the pre-sentence report, the court may, in its discretion, commit a convicted defendant to the custody of the division of corrections for a period not exceeding ninety days. The division of corrections shall conduct a complete study of the defendant during that time, inquiring into such matters as the defendant’s previous delinquency or criminal experience, his social background, his capabilities, his mental, emotional and physical health, and the rehabilitative resources or programs which may be available to suit his needs. By the expiration of the period of commitment, or by the expiration of the additional time as the court shall grant, not exceeding a further period of ninety days, the defendant shall be returned to the court for sentencing, and the court, prosecutor, and the defendant or his attorney shall be provided with a written report of results of the study, including whatever recommendations the division of corrections believes will be helpful to a proper resolution of the case. After receiving the report and recommendations, the court shall proceed to sentence a defendant in accordance with the sentencing alternatives provided under section 76-3-201. [Emphasis added.]

The purpose of this section is to provide the judge with more intimate information, concerning the particular defendant before him. Thus to enable him to appropriately exercise his discretion in sentencing.

Defendant concedes the judge has discretion under the statute to refuse to order the ninety-day evaluation, but contends the judge abused his discretion by rescinding this order. Defendant states his actions in the courtroom subsequent to the order for a ninety-day evaluation should not be a basis for depriving him of an evaluation as to the appropriateness of imprisonment for the offense to which he pled guilty. He claims the judge’s actions were based on personal emotion and contempt for defendant.

When the judge rescinded the order of evaluation, he informed defendant that he committed the two additional crimes of attempted escape and contempt of court, and *889that he would instruct the county attorney to file a complaint for attempted escape. Defendant was not given an opportunity to explain his actions, and was sentenced to the Utah State Prison.

In Spann v. People,1 the Colorado Supreme Court stated:

Judicial discretion is not personal discretion. All judicial power is held in trust for the people, having been delegated by them through the constitution. . Judicial discretion cannot be distorted to camouflage or insulate from appellate review a decision based on the judge’s personal caprice, hostility or prejudice.

The Idaho Supreme Court has held:

The granting or withholding of probation rests entirely within the discretion of the trial court. [Citation.] If the exercise of that discretion is based upon reason rather than emotion, it will not be disturbed by this Court.2

In this case, the judge ordered a ninety-day evaluation; the purpose was to assist him in determining a proper sentence for the crime to which defendant pled guilty. Although the judge was not required to order the evaluation in the first place, he was not free arbitrarily to revoke the order without good reasons for so doing. Defendant’s attempt to escape did not negate the reasons for the original order of evaluation, and no valid reason appears in the record justifying the revocation of the order. By informing defendant the county attorney would file a complaint for attempted escape, the judge reasonably reacted to defendant’s acts; however, the revocation of the evaluation order was unwarranted, and was an abuse of his discretion.

The case should be remanded with instructions to enter an order referring defendant to the board of corrections for a ninety-day evaluation.

. 561 P.2d 1268, 1269 (Colo.1977).

. State v. Cornwall, 95 Idaho 680, 518 P.2d 863, 867 (1974).