Julius Gabis, petitioner

Massachusetts Supreme Judicial Court1922-03-01

240 Mass. 465

Summary · law.co

Holding. The petition for writ of error is dismissed because the imprisonment portion of the sentence that Gabis challenged had been fully executed, rendering any review of its legality moot and leaving nothing for the writ to operate upon.

Julius Gabis was convicted of illegally possessing intoxicating liquor with intent to sell and sentenced on June 25, 1921, to pay a $100 fine and serve one month in the house of correction. The court suspended execution of the imprisonment portion until December 27, 1921. Gabis paid the fine but later, on August 5, 1921, the court revoked the suspension and ordered him committed to serve the prison term. Gabis filed a petition for a writ of error on August 30, 1921, challenging the court's authority to revoke the suspension and enforce the imprisonment sentence after he had already paid the fine and been released.

The court dismissed the petition on grounds that the claimed error had become moot. The imprisonment portion of the sentence was fully executed by September 4, 1921, leaving nothing for the writ of error to operate upon. The court found no flaw in the original sentence, the suspension of it, or the revocation of the suspension—each was within the district court's proper jurisdiction. Because the specific component of the sentence that Gabis challenged (the imprisonment) had already been completely served by the time the appellate court could have granted relief, the court declined to consider whether that portion was unlawful.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a district court retains jurisdiction to revoke a suspended sentence and enforce an imprisoned portion after part of the sentence has been executed
Whether a writ of error may be granted when the challenged portion of a sentence has been completely served
Whether review of a sentence is proper when the issue has become moot

Procedural posture

Gabis petitioned for a writ of error in the appellate court challenging a district court's August 5, 1921 order revoking the suspension of his sentence and committing him to imprisonment, after he had paid the fine portion of his June 25, 1921 sentence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Rugg, C. J.

This is a petition for a writ of error. The petitioner was brought before a district court on a complaint charging him with the crime of keeping intoxicating liquor with intent to sell the same contrary to law. He was found guilty and on June 25, 1921, was sentenced to pay a fine of $100 and to be committed to the house of correction for the term of one month. It was then ordered that the sentence be suspended to December 27, 1921. The record of the court thereafter is in these words: “Fine paid June 25/21 On Aug. 5, 1921 suspension of sentence revoked and committed to the H[ouse] of Correction. Mittimus.” The single assignment of error is that on August 5, 1921, the district court had no jurisdiction to order execution.of the part of the sentence relating to imprisonment after a part of the entire sentence had been executed by payment of the fine and the petitioner then had been permitted to go at large.

This petition was filed on August 30, 1921. Manifestly the sentence expired by its own, terms five days later. The petitioner must have been discharged on September 4, 1921.

There is and could be no contention that there was any illegality in the sentence of fine and imprisonment imposed on June 25,1921. That was within the terms of the statute. G. L. c. 138, §§ 2, 86. No allegation of error is made in the petition of anything occurring before August 5, when the suspension of sentence was revoked and the portion of the sentence as to commitment to the house of correction was put in execution. It is indubitable that the suspension of the sentence to a time certain was within the jurisdiction of the court. That was not a final but a temporary disposition. Commonwealth v. Dowdican’s Bail, 115 Mass. 133. Marks v. Wentworth, 199 Mass. 44. Renado v. Lummus, 205 Mass. 155. G. L. c. 218, § 38. See Ex parte United States, 242 U. S. 27, 47-50. That sentence could not be revoked by writ of error because it was in conformity to law.

The alleged error relates only to the commitment to imprisonment at a time subsequent to the payment of the fine. That imprisonment, however, has been fully executed. Since the enactment of St. 1851, c. 87 (see now G. L. c. 250, § 12), if there is error in the sentence this court may render the correct judgment. Error in sentence is not now, as it formerly was, ground for discharge from a correct conviction. Commonwealth v. Murphy, 174 Mass. 369. Where the portion only of the sentence, of which complaint is made, is imprisonment which has been wholly served, there is nothing upon which the writ of error can operate. The conviction cannot be set aside. The fine was not erroneous. Consideration of the question whether such portion of the sen tence as relates to the imprisonment was unlawful, is moot for every practical purpose. This court does not consider moot questions. Sullivan v. Secretary of the Commonwealth, 233 Mass. 543. Cases like Haynes v. Commonwealth, 107 Mass. 194, Commonwealth v. Fleckner, 167 Mass. 13, Walsh v. Commonwealth, 224 Mass. 39, are distinguishable.

Petition dismissed.