Benson v. United States, No. 21300.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE, , and POPE and BROWN, Circuit
Citation332 F.2d 288
PartiesJohn BENSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 21300.
Decision Date28 May 1964

332 F.2d 288 (1964)

John BENSON, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 21300.

United States Court of Appeals Fifth Circuit.

May 28, 1964.


332 F.2d 289

John Benson, Jr., pro se.

H. M. Ray, U. S. Atty., George H. Dulin, Asst. U. S. Atty., Oxford, Miss., for appellee.

Before TUTTLE, Chief Judge, and POPE* and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

The question presented on this appeal is whether a single "general sentence" on three counts for a term within the aggregate sentence which could have been imposed should be allowed to stand when it is brought into question by a direct proceeding to correct sentence under F.R.Crim.P. 35. Our answer is in the negative though under no stretch of the imagination does this affect the conviction or anything other than the sentence (see note 10, infra).

Appellant is confined under what the sentencing Court called a "general sentence" of 15 years. It was imposed on February 12, 1962, on his conviction on plea of guilty to a 3-count indictment charging violations of 18 U.S.C.A. §§

332 F.2d 290
1708 and 495.1 Had the maximum sentence been imposed consecutively on each count, the penalty would have been 5-10-10 years, aggregating 25 years.2 On January 25, 1964, Appellant moved the sentencing Court under Rule 35 to correct the sentence. The motion was denied on January 27, 1964, and Appellant is here complaining of this denial

This Court has held that "a single sentence on two or more counts for a term within the aggregate is not illegal * * *." Granger v. United States, 5 Cir., 1960, 275 F.2d 127, citing Reed v. United States, 5 Cir., 1944, 142 F.2d 435; Rodriguez v. United States, 5 Cir., 1958, 261 F.2d 128. Our position parallels that taken by other Circuits3 on this point and the more general holdings of this and other Courts that the reviewing Court generally will not disturb a sentence within the maximum which could have been imposed.4

However, most Courts recognize, as did we in Granger v. United States, 5 Cir., 1960, 275 F.2d 127, that the sentence is not in the most desirable form and should preferably specify punishment as to each separate count and indicate whether the sentences shall be served consecutively or concurrently.5

In those cases specific relief has been denied. The question is now before us whether a different conclusion should be reached. In doing so we do not repudiate what has been decided previously. We start with the universal recognition that the practice, while permissible, is unsatisfactory. What this case presents is an indication that this unwise, unsatisfactory practice is becoming so frequent that this presents a new factor calling

332 F.2d 291
for reexamination which likewise frees the Court from any notion that decision of the present problem has been foreclosed

There is first the basic idea that a criminal sentence should be plain, unequivocal, and so free from doubt that those concerned — accused, sentencing Court, reviewing Court, and prison authorities — will know precisely what the punishment is.6 One thing sure about the so-called "general sentence" for a total term greater than the maximum of one count but less than the aggregate of all maximums is that no one — accused, reviewing Court, prison authorities, or sentencing Court — knows what the real sentence is. A sentence is passed not because the defendant is a social outcast or needs chastisement generally. It is the law's punishment for specific transgressions of its formalized standards. It seems to us that everything points to the importance of an articulate, identifiable sentence being imposed. If that is what the law reasonably requires and prefers, then a sentence varying from that standard is, in the words of F.R. Crim.P. 35, "illegal."

Consideration of a few situations demonstrates the wisdom of our course. The "general sentence" creates unnecessary and sometimes troublesome difficulties for Courts both in direct appeals and collateral proceedings. It does the same for prison authorities in handling offenders.

First, on direct review of general sentences, the Court is forced to review the asserted errors relating to each and every count. Since the general sentence is not referable to any one count, the reviewing Court must review and uphold the convictions on all counts if the sentence is to stand.7

To avoid this prospect, the case must be remanded prior to final appellate review for resentencing, a procedure which could have been avoided altogether had the sentences been specifically related to the respective counts.

Second, experience now demonstrates that we may anticipate § 2255 post-conviction motions in many, many cases, most lacking in merit, but always with the possibility that one of substance will show up. When brought by a prisoner under a "general sentence," the same time-consuming processes of examination of all counts and remand for resentencing if all are not sustainable unavoidably occurs. The problem becomes more acute since most of these proceedings are brought without counsel on informal, frequently crude, non-lawyerdrafted papers. Added to this is the demonstrated liberality with which we accept the appeals for review and determination without imposing any technical barriers. It is entirely conceivable that a § 2255 fundamental error may be found as to one or more counts of a multicount "general sentence," but not as to all. In that event the whole sentence must be set aside and the case might well have to stand for a retrial. Both this prospect and the necessity of...

To continue reading

Request your trial
64 practice notes
  • U.S. v. Henry, Nos. 81-4107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 28, 1983
    ...311 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the leading case on the meaning of the word "sentence" is, in fact, Benson v. United States, 332 F.2d 288 (5th Cir.1964), a Fifth Circuit case that has subsequently been extensively quoted from with approval in two of the major treatises. See 5 L......
  • United States v. Maude, No. 23741.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 24, 1973
    ...138 U.S.App.D.C. 163, 425 F.2d 594 (1970). 122 The Fifth Circuit had previously denounced general sentences in Benson v. United States, 332 F.2d 288 (1964), which we found 123 United States v. Straite, supra note 121, 138 U.S.App.D.C. at 165, 425 F.2d at 596 (footnote omitted). 124 Id. (foo......
  • Seguros Tepeyac, SA, Compania Mexicana v. Bostrom, No. 21167.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 16, 1965
    ...5 Cir., 1964, 335 F.2d 153; Burton v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1964, 335 F.2d 317; Benson v. United States, 5 Cir., 1964, 332 F.2d 288; Whitney v. Wainwright, 5 Cir., 1964, 332 F.2d 787; Anderson v. United States, 5 Cir., 1963, 318 F.2d 815; Juelich v. United States, 5 Cir., ......
  • U.S. v. Holmes, No. 86-4048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1987
    ...and that it is wholly improper to impose a single, general sentence covering two or more separate offenses. Benson v. United States, 332 F.2d 288, 291-92 (5th Other aspects of the proceedings below likewise reflect that only a single contempt offense was charged. The plea agreement describe......
  • Request a trial to view additional results
64 cases
  • U.S. v. Henry, Nos. 81-4107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 28, 1983
    ...311 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the leading case on the meaning of the word "sentence" is, in fact, Benson v. United States, 332 F.2d 288 (5th Cir.1964), a Fifth Circuit case that has subsequently been extensively quoted from with approval in two of the major treatises. See 5 L......
  • United States v. Maude, No. 23741.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 24, 1973
    ...138 U.S.App.D.C. 163, 425 F.2d 594 (1970). 122 The Fifth Circuit had previously denounced general sentences in Benson v. United States, 332 F.2d 288 (1964), which we found 123 United States v. Straite, supra note 121, 138 U.S.App.D.C. at 165, 425 F.2d at 596 (footnote omitted). 124 Id. (foo......
  • Seguros Tepeyac, SA, Compania Mexicana v. Bostrom, No. 21167.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 16, 1965
    ...5 Cir., 1964, 335 F.2d 153; Burton v. State Farm Mut. Auto. Ins. Co., 5 Cir., 1964, 335 F.2d 317; Benson v. United States, 5 Cir., 1964, 332 F.2d 288; Whitney v. Wainwright, 5 Cir., 1964, 332 F.2d 787; Anderson v. United States, 5 Cir., 1963, 318 F.2d 815; Juelich v. United States, 5 Cir., ......
  • U.S. v. Holmes, No. 86-4048
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 7, 1987
    ...and that it is wholly improper to impose a single, general sentence covering two or more separate offenses. Benson v. United States, 332 F.2d 288, 291-92 (5th Other aspects of the proceedings below likewise reflect that only a single contempt offense was charged. The plea agreement describe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT