Ex parte De Angelo
| Decision Date | 30 June 1931 |
| Docket Number | No. 5868.,5868. |
| Citation | 50 F.2d 847 |
| Parties | Ex parte DE ANGELO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
P. M. Herbert, of Columbus, Ohio (H. A. Toland, of Columbus, Ohio, on the brief), for appellant.
R. H. Hildebrant, of Dayton, Ohio (Haveth E. Mau, of Cincinnati, Ohio, on the brief), for appellee.
Before DENISON and HICKENLOOPER, Circuit Judges, and SIMONS, District Judge.
The appellant was jointly indicted with two others for conspiracy to violate the National Prohibition Law. On June 22, 1928, he withdrew a plea of not guilty and entered a plea of guilty. Subsequently, on June 27, 1928, his codefendants were tried, found guilty, and sentenced. Sentence upon the appellant was deferred without designation of any specific date in the then or any succeeding term upon which sentence would be imposed. Nothing further is shown in the record relative to the disposition of appellant's plea until July 15, 1930, when he was called into court and sentenced, such sentence being imposed in the fourth term following that in which his sentence was deferred. A final commitment being issued against him, appellant filed application for a writ of habeas corpus, which was dismissed. At the hearing upon the writ the court records were produced in evidence, and were supplemented by oral testimony, and a statement of the sentencing judge read into the record. From such evidence it appears that at the time the appellant pleaded guilty his codefendants had not yet been tried; that upon entering his plea the defendant, or his counsel, represented to the court that the defendant would like to have some time to arrange his business affairs; that subsequently the appellant went to the District Judge and asked that he be given a chance. In September, 1928, he called the United States attorney to ascertain when he would be wanted for sentence, and was told that when wanted he would be called. Subsequently the sentencing judge had further conversation with the appellant while in the pursuit of some investigation in relation to his two codefendants. Appellant was later indicted upon a narcotic charge, and pending trial nothing was done in respect of sentence on his former plea. After appellant's acquittal on the narcotic charge he was brought into court to be sentenced on the conspiracy indictment.
It is now contended that the sentence of the appellant was invalid because the court having deferred the sentence indefinitely, and the then and next succeeding terms of court having expired, had lost jurisdiction to impose any sentence.
Prior to the passage of the Federal Probation Law, 43 Statutes, 1259, Act of March 4th, 1925 (18 USCA §§ 724-727), it had been held that: courts have no power to suspend sentence except for short periods pending the determination of other motions or considerations in the cause after verdict, and that when the court has by order indefinitely suspended sentence it cannot thereafter, and especially at a subsequent term, revoke such order and proceed to judgment by sentencing the defendant, United States v. Wilson (C. C.) 46 F. 748; that a court may, by appropriate action, retain jurisdiction of a criminal cause for a lawful purpose beyond the term of the conviction, and may impose such sentence at a later term, but (in the absence of a statute or accepted practice) the mere silent postponement of sentence in effect postpones sentence indefinitely, and precludes the court from pronouncing sentence at a subsequent term, Ex Parte Singer, 284 F. 60 (C. C. A. 3); Mintie v. Biddle, 15 F.(2d) 931 (C. C. A. 8); that jurisdiction to impose sentence at a term after the trial term is retained where the court's purpose in postponing sentence is not to pardon or parole, but is incident to the administration of justice within its powers, and its orders of postponement are unconditional and for a definite period, Miner v. United States (C. C. A.) 244 F. 422; Musick v. United States (C. C. A.) 2 F.(2d) 711. In Ormsby v. United States (C. C. A.) 273 F. 977, it was...
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Adamo v. McCorkle, A--427
...Manifestly an order granting probation without more in effect suspends the imposition of sentence. As was said in Ex parte De Angelo, 50 F.2d 847, 848 (6 Cir., 1931): 'Granted that in the instant case the sentencing judge did not specifically indicate that the postponement of sentence was a......
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Adamo v. McCorkle
...put on probation for a period of five years' necessarily meant that the imposition of sentence was being suspended. Cf. Ex parte DeAngelo, 50 F.2d 847 (C.C.A.6, 1931). That was undoubtedly understood by the defendant and his counsel and no objection thereto was voiced. The period of probati......
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Buhler v. Pescor
...petitioner on the charge to which he had pleaded guilty, at any time within fifteen years from the date of his conviction. Ex parte De Angelo, 6 Cir., 50 F.2d 847. Fifteen years is the maximum punishment authorized by Congress upon conviction of the offense charged in Count 3 of the indictm......
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Gaddis v. United States
...in resentencing Gaddis when he revoked his probation. Whitehead v. United States, 6 Cir., 1946, 155 F.2d 460, 461; Cf. Ex parte De Angelo, 6 Cir., 1931, 50 F.2d 847; Morgan v. Adams, 8 Cir., 1915, 226 F. In any event, taking into account what the court said at the time of sentence, and the ......