Gaddis v. United States
Citation | 280 F.2d 334 |
Decision Date | 25 July 1960 |
Docket Number | No. 14154.,14154. |
Parties | William E. GADDIS, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William E. Gaddis, in pro. per.
James E. Applegate, Asst. U. S. Atty., Cincinnati, Ohio, Hugh K. Martin, U. S. Atty., Thomas Stueve, First Asst. U. S. Atty., and James E. Applegate, Asst. U. C. Atty., Cincinnati, Ohio, on brief, for appellee.
Before MARTIN, WEICK and O'SULLIVAN, Circuit Judges.
This is an appeal from an order of the District Court denying a motion to vacate a sentence filed under the provisions of Title 28 U.S.C. § 2255.
Appellant, on September 28, 1956, entered a plea of guilty to both counts of an Information filed in the District Court charging him with forgery and uttering of a government check. Title 18 U.S.C. § 495. The District Judge, in his oral pronouncement of the sentence, stated:
The judgment of conviction provided:
Gaddis served the sentence imposed on Count one and was released from the Federal Correctional Institution at Milan, Michigan on July 21, 1957. According to his own statement he voluntarily submitted to probation supervision for a period of fourteen months.
On September 3, 1958 Gaddis was arrested for receiving stolen property. He entered a plea of guilty on October 30, 1958 to an indictment returned in the Common Pleas Court of Hamilton County, Ohio charging him with receiving said stolen property, and was sentenced to imprisonment for 90 days.
A bench warrant was issued by the District Court charging Gaddis with violations of the terms of his probation. After hearing, his probation was revoked and he is now serving the two year sentence.
Gaddis claims that in the oral pronouncement of his original sentence in open court, he was merely given a suspended sentence for two years and that nothing was said to him about probation. He urges that the oral pronouncement controls the judgment of conviction. Wilson v. Bell, 6 Cir., 1943, 137 F.2d 716; Walden v. Hudspeth, 10 Cir., 1940, 115 F.2d 558. He insists that he was not legally on probation and hence could not be charged as a probation violator.
The only authority for suspension of sentence in the federal court is in connection with probation. Title 18 U.S.C. § 3651. Prior to the Probation Act an indefinite suspension of sentence was void. Miller v. Alderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702. If the suspension of sentence was void, the District Judge was clearly within his rights 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. 719.
In any event, taking into account what the court said at the time of sentence, and the fact that Gaddis appeared after his release and underwent probation supervision, we are not persuaded that Gaddis did not understand that the suspension of his sentence involved probation. In our judgment, the sentence on Count Two was valid.
There is an inconsistency, however, in the pronouncement of sentence and the judgment of conviction. In the pronouncement, nothing was said about the sentences on the two counts being concurrent or consecutive. In the judgment of conviction, the sentences run consecutively. Where there is any ambiguity, the prisoner is entitled to have the language in the pronouncement construed most favorable to him. In the absence of express language in the pronouncement of sentence fixing the date of commencement of probation, it is deemed to commence when the Judge imposes the sentence. United States v. Rosenstreich, 2 Cir., 1953, 204 F.2d 321, 322; Sanford v. King, 5 Cir., 1943, 136 F.2d...
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...will impose the lesser of the conflicting sentences, based on the principle of lenity in criminal proceedings. See Gaddis v. United States, 280 F.2d 334, 336 (6th Cir.1960) (prisoner entitled to have ambiguous language in the pronouncement construed most favorable to The question before us ......
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