241 F2d 128 McNutt v. E Schneckloth

241 F.2d 128

Ralph McNUTT, Appellant,
Merle E. SCHNECKLOTH, as Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Appellee.

No. 15185.

United States Court of Appeals Ninth Circuit.

February 1, 1957.

Ralph McNutt in pro. per.

Don Eastvold, Atty. Gen. of Washington, Michael R. Alfieri, Asst. Atty. Gen., for appellee.

Before STEPHENS, FEE and BARNES, Circuit Judges.


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McNutt, a state prisoner, appeals from a denial by the District Court of his petition for a writ of habeas corpus. McNutt argues that his constitutional rights were violated when the state trial court vacated his sentence of imprisonment in the state penitentiary "for not less than ten years" and entered a nunc pro tunc judgment and sentence in which he was sentenced to a term of "not more than twenty years".


Under the laws of Washington the first sentence entered by the state trial court was erroneous. When this fact was brought to the attention of the trial court, McNutt was returned to the court and a correct sentence was entered. See McNutt v. Delmore, 47 Wash.2d 563, 288 P.2d 848.


We have examined the various contentions raised by appellant and find them without merit. We agree with the reasoning of the Washington Supreme Court that when a sentence has been imposed for which there is no authority in law, the trial court has the power and the duty to expunge the void sentence and pronounce legal sentence, whenever the defect is discovered.