State v. Gerrish

746 P.2d 762 (1987)

STATE of Utah, Plaintiff and Respondent, v. Oliver Benjamin GERRISH, Defendant and Appellant.

No. 860159.

Supreme Court of Utah.

November 19, 1987.

Jo Carol Nesset-Sale and Curtis C. Nesset, Salt Lake City, for defendant and appellant.

David L. Wilkinson and Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

In September 1985, defendant pleaded guilty to one count of aggravated sexual abuse of a child, a first degree felony.[1] The crime is punishable by incarceration for a minimum mandatory term of three, six, or nine years.[2]

In October 1985, defendant was sentenced to a minimum mandatory sentence of ten years. In November 1985, this erroneous sentence was amended without hearing to specify a minimum mandatory term of six years.

In February 1986, the trial court sua sponte resentenced defendant, with defendant and his counsel present. Defendant's motion to have sections 76-5-404.1(4) and 76-3-406(1) declared unconstitutional was denied. Defendant was resentenced to a minimum mandatory term of six years.

On appeal, defendant claims that the minimum mandatory sentencing scheme set forth in Utah Code Ann. §§ 76-5-404.1(4) (1987), 76-3-201(5)-(10) (Supp. 1985) (amended 1986 & 1987), 76-3-406(1) (Supp. 1985) (amended 1986), and 77-27-9(2) (Supp. 1985) (amended 1986) is unconstitutionally vague. In State v. Egbert,[3] we faced a similar challenge to the minimum mandatory sentencing requirements of Utah Code Ann. § 76-5-405(2) (Supp. 1983) (amended 1986) and § 76-3-201(5) (Supp. 1983) (amended 1984, 1986, & 1987), and there the Court held the minimum mandatory provisions constitutional. The minimum mandatory sentencing scheme challenged in this case is substantively no different than that challenged in Egbert.[4] Therefore, our ruling in Egbert controls this appeal.

Defendant's sentence is affirmed.

STEWART, Associate C.J., and HOWE, DURHAM and ZIMMERMAN, JJ., concur.

[1] Utah Code Ann. § 76-5-404.1(3)-(4) (Supp. 1987).

[2] Id. at -404.1(4); see also Utah Code Ann. §§ 76-3-201(5)-(10) (Supp. 1985) (amended 1986 & 1987), -406 (Supp. 1985) (amended 1986), 77-27-9(2) (Supp. 1985) (amended 1986).

[3] 748 P.2d 558 (Utah 1987).

[4] See id. at 559, n. 2.