Carrollo v. United States
| Decision Date | 17 April 1944 |
| Docket Number | No. 12713.,12713. |
| Citation | 141 F.2d 997 |
| Parties | CARROLLO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. Randolph Lasson, of Kansas City, Mo., for appellant.
David Thompson, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Thomas A. Costolow, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
This is an appeal from an order denying appellant's motion to vacate and set aside a judgment and sentence entered by the trial court on the 20th day of October, 1939, adjudging appellant guilty of an attempt to defeat and evade a part of his income tax as charged in an indictment to which appellant had entered a plea of guilty. We shall hereafter refer to appellant as defendant. On defendant's plea of guilty, he received the following sentence:
"Ordered and Adjudged, that the defendant, having been found guilty of said offenses, is hereby committed to the custody of the Attorney General for imprisonment in an institution of the penitentiary type to be designated by the Attorney General or his authorized representative for the period of three (3) years on count 3, to be served consecutively with the sentences imposed in cases 14578 and 14581, three (3) years on count 4 to be served concurrently with the sentence imposed on count 3, without costs, provided, however, that if before the expiration of the present, April, 1939 Term of this Court the defendant shall pay to the United States the income taxes due for the years 1937 and 1938, the interest thereon, and the civil penalties imposed by law in connection therewith, or such lesser amount as shall be acceptable to ultimately responsible officials of the Internal Revenue Department, or upon arrangements therefore satisfactory to those officials, then and in that event the sentence in this case will be modified from three years' imprisonment as to each count to imprisonment in an institution of the penitentiary type for a period of one year as to each count, and that said defendant be further imprisoned until said defendant is otherwise discharged as provided by law." Italics supplied.
This sentence was entered during the April, 1939, term of the United States District Court at Kansas City. The first day of the next succeeding term of that court was November 6, 1939. Before the expiration of the April, 1939, term, defendant secured an order extending the April, 1939, term of court for the purposes of his case for a period of 180 days from Saturday, November 4, 1939, "solely for the purpose of making an order within the term as extended, modifying the sentence in the event any one of the conditions set out in the original sentence and judgment shall be satisfied within the said period of one hundred and eighty (180) days." Defendant did not, before the expiration of the term of court as extended, pay to the United States the income taxes due for the years 1937 and 1938, nor make a satisfactory settlement of said taxes with the Internal Revenue Department for said years.
Nearly four years subsequent to the date of sentence, defendant, by his counsel, filed motion to vacate both the judgment sentencing him and the order extending the term of court at which he was sentenced on the grounds that (1) the sentence so imposed was not in strict accordance with the penalty statute; (2) the sentence was a contingent one in that the serving of the three year sentence was contingent upon defendant's failure to make a satisfactory settlement within the 180 days from November 4, 1939; (3) the sentence was a conditional one in that the three year sentence was bottomed upon the condition only, in the event that defendant should fail to make a satisfactory settlement with the Internal Revenue Department within the time limited; (4) the order and judgment gave defendant the option as to what sentence he wished to serve, i. e., the greater, three years, or the lesser, one year, and optional sentences are contrary to law; (5) the order and judgment constituted an imprisonment for debt; (6) the order enlarging the April term from November 4, 1939, was in effect judicial legislation. In support of his motion his counsel made affidavit that prior to the time of the submission of the motion, but not until after the expiration of the 180 days, he had made a satisfactory settlement with the Internal Revenue Department for payment of all unpaid income taxes for the years 1937 and 1938. The motion being denied, defendant prosecutes this appeal, seeking reversal on substantially the same grounds urged in support of his motion in the trial court.
The indictment in this case charged the defendant with violation of Section 145, Title 26 U.S.C.A. Int.Rev.Code, which reads in part as follows:
"* * * and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."
The validity of the indictment is not questioned, and the trial court confessedly had jurisdiction both of the offense and of the defendant. Unless the judgment is a nullity in whole or in part, the power of the trial court over it ceased at the end of the term, except for purposes of enforcement. Gilmore v. United States, 8 Cir., 131 F.2d 873. If, however, the judgment as entered was void in whole or in part, then the court entering it retained jurisdiction and might, even after the expiration of the term at which it was entered, correct or vacate it and enter a new sentence in conformity with the law. Holiday v. Johnston, 313 U.S. 342, 550, 61 S. Ct. 1015, 85 L.Ed. 1392. Thus, it is generally held that where a sentence is void as a matter of law for reasons appearing upon its face, the court may, even after the expiration of the term at which it was entered, correct the sentence. Garrison v. Reeves, 8 Cir., 116 F.2d 978; Bugg v. United States, 8 Cir., 140 F.2d 848.
It is therefore necessary to consider whether the judgment as entered in this case was void. Defendant bottoms his argument of invalidity on the claim that the sentence was not in strict accordance with the statute in that it was contingent or conditional. The judgment sentenced defendant for a definite period....
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