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eBook details

• Title: Lindsey v. Leavy Et Al.
• Author : Ninth Circuit Circuit Court of Appeals
• Release Date : January 01, 1945
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 52 KB

Description

The issues raised by the allegations of appellants complaint and presented in the numerous affidavits and documents filed in this action, have been before the courts upon many occasions. Upon three occasions appellant was convicted before juries in the Superior Court of the State of Washington of the crimes of grand larceny and forgery. The first conviction and sentence was in 1935. The other two convictions and sentences were in 1937. Pursuant to judgment, sentence and commitment on these convictions, appellant was delivered to the State Penitentiary in Washington where he was confined from April 20, 1938 to May 29, 1941 when he was released on parole. He has not been imprisoned since that date. In Lindsey v. Washington, 301 U.S. 397, 57 S. Ct. 797, 81 L. Ed. 1182, the Supreme Court (review on cert.) held that a state statute making more onerous the standard of punishment is ex post facto and void as applied to a crime committed before its enactment, and because appellant had been wrongly sentenced, remanded the case for further proceedings by the state court. Subsequently, and pursuant to this mandate, the former sentence was set aside and appellant was properly sentenced under the law in effect at the time of the commission of the offense. See State v. Lindsey, 194 Wash. 129, 77 P.2d 596, 597. The decision of the Supreme Court, 301 U.S. 397, 57 S. Ct. 797, 81 L. Ed. 1182, followed by the decision of the Supreme Court of the State of Washington, 194 Wash. 129, 77 P.2d 596, are decisive of the legal issues raised in this case. The state court had jurisdiction to resentence appellant under the authority of these cases and we so hold. Despite this posture of the case, appellant stoutly insists here, as he did below, that by reason of the decision of the Supreme Court in 301 U.S. 397, 57 S. Ct. 797, 81 L. Ed. 1182, holding in his case that the application of an ex post facto law was improper, the state courts thereby lost all jurisdiction to resentence him. This is the burden of his complaint. This position is untenable and his arguments, based on this contention, are unsound and void of merit. His attempts to secure a review of this question in the Supreme Court have failed. See Ex parte Lindsey, 303 U.S. 617, 58 S. Ct. 520, 82 L. Ed. 1083; Lindsey v. State, 303 U.S. 654, 58 S. Ct. 761, 82 L. Ed. 1114; Id., 303 U.S. 669, 58 S. Ct. 830, 82 L. Ed. 1135; Id., 304 U.S. 559, 58 S. Ct. 947, 82 L. Ed. 1526; Id., 305 U.S. 637, 59 S. Ct. 108, 83 L. Ed. 409. See also, 194 Wash. 129, 77 P.2d 596, supra. Failing to secure such a review in the Supreme Court, appellant, in 1940 and again in 1941, sought writs of in the United States District Court for the Eastern District of Washington. In each case, the court denied relief and dismissed the petitions for lack of merit.

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