Frankel v. United States, 9045.
| Decision Date | 05 December 1942 |
| Docket Number | No. 9045.,9045. |
| Citation | 131 F.2d 756 |
| Parties | FRANKEL v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William G. Comb, of Detroit, Mich., for appellant.
Louis M. Hopping, of Detroit, Mich. (John C. Lehr, of Detroit, Mich., on the brief), for appellee.
Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.
The appellant was indicted with others for conspiracy to violate the alcohol tax laws. His original plea of not guilty was subsequently withdrawn, and on June 24, 1941, he was brought into court for sentence on his plea of guilty. While his case had previously been referred to the probation office for report, it does not appear that any report was received. During a somewhat extended oral examination the colloquy set forth in the margin1 took place between the court and the defendant, and at its close the court indicated a fine of $1,500 with the grant of 30 days for its payment, and a continuance of the bond during the interval. In the short book for June 24, 1941, appears the notation "Indicated fine of $1500 to be paid by defendant John S. Frankel, in 30 days."
On July 15, and well within the 30 day period, Frankel appeared before the court seeking a reduction of the fine, representing that it was impossible for him to raise $1,500. The court thereupon inquired whether there was any reason why sentence should not then be pronounced, and no response being received, imposed a prison sentence of 2½ years with no option of a fine. Frankel was taken into custody by virtue of the sentence, but three days later, and still within the 30 day period, his attorney tendered $1,500 to the clerk of the court in payment of the fine. It was refused, and the court later denied a petition praying that the clerk be required to accept the fine and release the appellant. This appeal followed and it is based upon the contention that the imposition of the fine was a valid sentence and the subsequent prison sentence invalid.
It is settled that the court which has jurisdiction over a defendant whose guilt is established in a criminal case by verdict or plea, has the power, during the same term of court, to set aside a sentence and impose another modified sentence notwithstanding that execution of the former sentence had commenced. In re Graves, D.C., 117 Fed. 798; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354. It is not, however, within the power of the court to increase a sentence when punishment has already been partly suffered under the original sentence. Wharton Criminal Pleading and Practice, 9th Ed., p. 913; Ex parte Lange, 18 Wall. 163, 167 to 174, 21 L.Ed. 872. The question then arises whether the indication of a fine of $1,500 was a valid sentence, and if so whether punishment thereunder had already, in some respects, been suffered. If it had the court had no power to increase it.
The injustice residing in the pronouncement of more than one sentence on the same verdict (or plea) is fully rationalized in the opinion In re Lange, supra, quoted with approval in United States v. Benz, supra. There it was said: 282 U.S. 304, 51 S.Ct. 114, 75 L.Ed. 354. This was said in a case where punishment was augmented by the second sentence but after the first had been entered upon, the court recognizing, however, that the modification of a sentence would not violate the guaranty against double punishment, nor would its increase if no part of the sentence had been executed.
In the present case no confinement in prison had originally been imposed and so no serving of time could have or had been entered upon. Nevertheless it may well be that the appellant had already suffered punishment by the indication of a proposed fine. He set about raising the money. That he was partly successful, though not wholly so, is to be inferred from his plea for reduction. What steps he took do not appear, but it may well be that he obligated himself to relatives and friends, or sacrificed property or collateral. Nine days before the critical date he applied to the court for amelioration. Had he not appeared, or had he been ready with the indicated fine, it is clear that he neither would nor could have then been sentenced to imprisonment. His plea was met not merely by denial...
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