폭행등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
The summary of the grounds for appeal (unfair punishment) by the lower court is too unreasonable.
The facts of the criminal record of the defendant, who is the reason for aggravation of repeated crime, do not constitute criminal facts but merely constitute the reason for sentencing, and even if it is not stated in the indictment, it may be tried and judged, and even if the indictment does not contain any applicable provisions for aggravation of repeated crime, the court, ex officio, may apply this provision and punish him as a repeated crime.
(see, e.g., Supreme Court Decision 2017Do2604, Apr. 26, 2017). According to the records of this case, the Defendant may recognize the fact that the execution of a sentence became final and conclusive on the same day, and on the same day, on the same day, on January 21, 2015, by having been sentenced to three months as a crime of assault in a military court branch of the Jeonju District Court as of January 21, 2015, and was released on April 20, 2015.
The execution of a sentence is based on the premise of final judgment, and the execution of a sentence is not immediately executed, and even if the defendant was released by the cancellation of detention, it cannot be said that the execution of imprisonment is immediately terminated.
The period of punishment for a defendant shall be calculated from July 16, 2015, when a judgment became final and conclusive. However, since the number of days of pre-trial detention is included in the period of punishment and no sentence remains to be executed any longer, it is reasonable to view that the execution of imprisonment is completed simultaneously with the final and conclusive
Since the crime of assault among the facts charged in this case was committed within 3 years from the end of the above sentence execution, the sentence shall be determined within the scope of the punishment imposed for repeated crime pursuant to Article 35 of the Criminal Act, but the judgment of the court below is erroneous.
Therefore, the judgment of the court below cannot be maintained as it is.
Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is again reversed after pleading as follows.