Davis v. United States

Decision Date29 January 1979
Docket NumberNo. 13146.,13146.
PartiesSheila DAVIS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Michael B. Waitzkin, Public Defender Service, Washington, D. C., for appellant.

John H. Korns, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and HARRIS, Associate Judge, and MENCHER, Associate Judge, Superior Court of the District of Columbia.*

MENCHER, Associate Judge:

This case presents the question of whether judges of the Superior Court of the District of Columbia, pursuant to the provisions of D.C.Code 1973, § 16-710, have authority to impose a split sentence, i. e., a sentence on one count which imposes a term of incarceration, suspends only part of it, and places the defendant on probation following his release from incarceration in lieu of the suspended balance of the prison term.

I. BACKGROUND

On August 5, 1977, appellant, Shelia Davis, entered pleas of guilty before the Honorable William C. Pryor to one count of petit larceny, one count of simple assault, and one count of felony violation of the Bail Reform Act.

On September 12, 1977, the court orally sentenced appellant as follows:

[T]he sentence on the felony will be not less than twenty months, not more than sixty months. The Court will suspend one half and place her on probation after she has served one half of the minimum sentence.

With regards to the two misdemeanors, I might say on probation, the probation will be conditioned that she become involved in a drug treatment program such as Emerge and cooperate fully. With regards to the misdemeanors, it will be thirty days concurrent, each charge, and I will suspend the execution of those sentences.

To repeat, her sentence is not less than twenty months, nor more than sixty on the felony. I will suspend one half and place her on probation on the condition that she participate in the Emerge Program. As to the misdemeanors, it is thirty days concurrent to the felony charge.

The written Judgment and Commitment Orders entered on that date state the sentences on the misdemeanors are to run concurrent with each other and with the sentence on the felony. The Judgment and Commitment Order on the felony shows a sentence of "not less than (20) months & no more than (60) months. This defendant is to serve half of minimum sentence, thereafter other half of minimum is suspended. Probation thereafter for 1 yr."

The court's Judgment and Probation Order of September 19, 1977, reflected an imprisonment period and probation of "not less than (20) months and no more than (60) months. Def to serve half of minimum sent. Thereafter the 2nd. half is suspended. IT IS ORDERED that the 2nd half of minimum sent. be . . . suspended and the defendant be . . . placed on probation . . . for a period of 1 yr."

On September 22, 1977, appellant filed a Motion to Correct Clerical Error. Her counsel represented that he had understood that the sentences on the misdemeanors were suspended and the sentence on the felony was to be ten months followed by probation. However, D.C. Jail records did not indicate that the misdemeanor sentences were suspended. The jail apparently believed that the felony sentence was to be ten-to-sixty-months with appellant being eligible for parole after ten months. Moreover, once paroled she would also begin service of her probationary period of one year under the supervision of the Superior Court. On October 17, the court denied the motion and explained that "there is no clerical error. The sentence imposed was intended and, in fact, one-half of the minimum sentence was suspended."

On December 23, 1977, appellant filed a Motion for Reduction of Sentence which asked for, in part, the imposition of a split sentence of ten months, "with the remainder of her sentence suspended in lieu [sic] of one year probation . . ." (meaning a straight ten-month sentence).1

The government responded with a Motion to Correct Illegal Sentence which took the position that the sentence imposed was a ten-to-thirty-month sentence and judges of the D.C. Superior Court do not have the authority to impose such a split sentence under D.C.Code 1973, § 16-710.

On January 25, 1978, the court denied both motions and gave the court's position on split sentences:

The sentence imposed was imprisonment of not less than 20 months nor more than 60 months. One-half of the minimum sentence was suspended. [The government indicated that this is an improper split sentence. Traditionally, a split sentence is one which includes imprisonment, a suspension of part of the sentence, followed by probation. Obviously, the present sentence is not of that nature. In this instance, the Court has simply suspended part of the minimum term to be served.] In the view of the Court, such a suspension of sentence is permitted by the District of Columbia Code and, indeed, lies within the inherent judicial discretion. Accordingly, it is concluded that the sentence is lawful. [Emphasis and Brackets added.]

On February 2, 1978, the court issued an amended order which deleted the bracketed portion of the January 25 order, supra.

II. THE SENTENCE

There have been various interpretations of the sentence imposed in this case. Appellant views the sentence as twenty to sixty months, all but a fixed term of ten months suspended, with probation to follow. In its Motion to Correct Illegal Sentence, the government contends the sentence is a twenty-to-sixty-month sentence, one-half of the whole sentence suspended (resulting in a ten-to-thirty-month sentence), followed (illegally) by probation. Jail records calculated the sentence as ten to sixty months in custody with parole eligibility after ten months and one year's probation. In its brief to this court, the government states that there is no ambiguity as to the sentence imposed; it is a ten-to-sixty-month sentence. Finally, the trial judge's interpretation of his own sentence some four months after it was imposed appears to be at odds with what was originally stated.

The sentence pronounced in open court constitutes the actual judgment of the court. Valentine v. United States, D.C. App., 394 A.2d 1374 (1978); Rich v. United States, D.C.App., 357 A.2d 421 (1976). When the appellant came before the court for sentencing on September 12, 1977, the court imposed a twenty-to-sixty-month sentence, suspended "one half" and placed the appellant on probation "after she has served one half of the minimum sentence." It is unclear to what the above "one half" refers: it could refer to the minimum only, the maximum only, or both the minimum and the maximum.

While the written judgment must conform to the oral judgment of the Court, Valentine v. United States, supra, it is well settled that "the sentence in writing should be referred to in order to resolve the ambiguities in the oral pronouncement . . ." Green v. United States, 447 F.2d 987, 987 (9th Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1201, 31 L.Ed.2d 250 (1972). According to the Judgment and Commitment Order, the Judgment and Probation Order, and the Order of January 25, 1978, the court appears to have suspended only the minimum sentence and granted a year probation. Thus, it would appear on the felony that the court imposed a sentence of twenty to sixty months, one-half the minimum suspended, the maximum left intact for backup time, and the one year probation to start after the ten-month minimum sentence is served. However, it is not necessary to finally resolve this issue. It is clear that, under any interpretation, the court's sentence is a split sentence. Holding as we do that a judge of the Superior Court has no authority to impose a split sentence, as that term has been defined, supra, the case must be remanded for resentencing.2

III. THE AUTHORITY FOR SUSPENSION OF SENTENCE AND PROBATION IN THE DISTRICT OF COLUMBIA

In 1910, the Congress of the United States passed legislation giving the courts of the District of Columbia power to suspend sentences and place defendants on probation. This included both the court with general federal jurisdiction (the Supreme Court, now the U.S. District Court for the District of Columbia) and the local police court (predecessor of the Court of General Sessions). Act of June 25, 1910, ch. 433, 36 Stat. 864 (current version at D.C. Code 1973, § 16-710). At that time, no other federal court in the country was provided by statute with such authority. However, a number of federal judges in other districts had, for a long period of time, been suspending sentences and placing defendants on probation in the belief that they had inherent judicial power to do so. This practice came to an end in 1916 when the Supreme Court of the United States held that federal judges did not have inherent judicial power to permanently suspend sentence; in short, in the absence of a legislative grant of authority, it could not lawfully be done. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The Supreme Court did take note of the fact that the reason the federal court in the District of Columbia had such power, was because same had been given to it by Congress in the Act of 1910.

In 1925, as a result of Ex parte United States, supra, Congress passed the Federal Probation Act, which authorized the suspending of sentences and granting of probation in federal courts outside the District of Columbia. Act of March 4, 1925, ch. 521, 43 Stat. 1259.

On June 18, 1953, the Congress authorized the then Municipal Court for the District of Columbia to suspend sentences without granting probation. Act of June 18, 1953, ch. 128, 67 Stat. 65 (1953). The other changes in the D.C. Act did not go to the substance of the power to suspend and grant probation. See Revision Notes to D.C.Code 1973, § 16-710.3

In 1958, Congress...

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