Kennedy v. Reid
Decision Date | 08 October 1957 |
Docket Number | No. 13859.,13859. |
Citation | 101 US App. DC 400,249 F.2d 492 |
Parties | Frank KENNEDY, Appellant, v. Curtis REID, Superintendent, District of Columbia Jail, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Samuel F. Ianni, Washington, D. C. (appointed by the District Court), for appellant.
Mr. John W. Kern, III, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Nathan J. Paulson, Asst. U. S. Attys., were on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
The District Court denied a petition for a writ of habeas corpus. On May 25, 1954, petitioner pleaded guilty to a count of housebreaking in each of three cases, Nos. 438-54, 439-54, and 440-54, a count of larceny in each indictment being thereafter dismissed. On June 18, 1954, Judge Curran imposed a sentence of imprisonment of from one to three years in No. 438-54. He imposed a sentence of imprisonment of one to three years in No. 439-54, the term of which was to run consecutively to the sentence in No. 438-54. Likewise, he imposed a sentence of one to three years in No. 440-54 to run consecutively to the sentence imposed in 439-54. The official transcript of the proceedings at the time of sentence discloses that the sentences were pronounced to run consecutively. The judge's notes on the probation report reflect one to three years in each case, sentences to run consecutively. The clerk's original notes on the face of the Criminal Court jacket read one to three years consecutively. The docket entries of the Court stated that on June 18, 1954, the petitioner was sentenced to a term of imprisonment of from one to three years in each case, sentences to run consecutively in Criminal Cases Nos. 439-54 and 440-54. The commitment papers, however, erroneously used the word "concurrently," in the last mentioned cases. Petitioner was released after completion of the sentence imposed on the first indictment, but because of the clerk's error in the preparation of the commitment, failed to serve the sentence pronounced upon each of the other indictments. When the mistake was discovered, the District Court, apparently in the absence of the petitioner, entered orders for correction of the judgment and commitment and issued a bench warrant leading to the arrest of the petitioner. Assigned counsel challenged the court's action, asserting the court lacked jurisdiction to correct the error. Relief having been denied, this appeal followed.
Had nothing else occurred we would have a different problem, but at the habeas corpus hearing the facts were fully developed. The petitioner offered as exhibits his "commitment papers" showing, as the judge observed, On cross examination the Government caused petitioner to read into the record a portion of the official reporter's transcript of the proceedings at the time of the original sentence, viz.:
The judge was asked to take judicial notice of docket entries and other material appearing in the court's records.
"The Court: I will also take judicial notice of my own notes that were made on the probation report which said one to three years in each case, consecutively; the clerk\'s original notes on the back of the jacket said one to three years consecutively; and the docket entry on the front of the jacket said one to three years, consecutively; and the commitment was written by a typographical error which said concurrently."
Petitioner's former counsel at the time of sentence also testified that petitioner "got the stiffer" of the sentences imposed upon the two defendants, apparently because of petitioner's prior record.
Following the habeas corpus hearing the District Judge made findings of fact as follows:
The pronouncement of sentence constitutes the judgment of the court.1 The authority for the execution of the court's sentence is that judgment. "The commitment is mere evidence of such authority and if the commitment is not in accord with the judgment, the latter may be resorted to on habeas corpus for the purpose of determining whether the detention of the petitioner is lawful."2 Thus, the Supreme Court has held that "a warrant of commitment departing in matter of substance from the judgment back of it is void."3 Mr. Justice Cardozo has pointed out4 that a mittimus spends its force when the prisoner shall have been delivered; indeed even if it be lost or destroyed, detention may be justified by the underlying judgment. Thus, the courts in habeas corpus proceedings explore the foundations for the mittimus and "pronounce them false or true."5
Here, the District Court explicitly went back to its own judgment. Overwhelmingly established on the record were the sentences of one to three years on each indictment to run consecutively. There was no lack of "materials"6 to establish the exact fact. Surely the court is not required "to blind its eyes to clear evidence of its own intention,"7 as we have recognized in applying the Daugherty case standard.8 We see here no room for doubt, either as to the intention of the sentencing judge, or as to the fact of his judgment.
Of course, the court at a succeeding term has power to sentence where a void sentence had been previously imposed. "To hold otherwise would allow the guilty to escape punishment through a legal accident."9 We are not dealing with an excessive sentence,10 nor an illegal sentence,11 nor a later increase in a lawful sentence, service of which had been commenced or completed.12 There is no question of the time of sentence as distinguished from the actual entry of the written evidence of the judgment of sentence.13 Rather, the District Judge undertook in his December 20, 1956, orders merely to correct the court's record of what had been the validly and timely pronounced sentence. The prisoner, as the court's findings disclose, had been sentenced to serve three consecutive sentences of one to three years on each indictment, or in courtroom jargon three to nine, hence the "stiffer" of the two sentences pronounced. Petitioner's co-defendant received "two to six," as the quoted colloquy, supra, disclosed. There was no "increase" involved nor was the actual sentence changed. The plain fact is that, through error, the petitioner served only the sentence imposed on the first indictment.
Rule 3614 provides:
"Clerical mistakes in judgments, orders or other parts of the record * * * arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders." (Emphasis added.)
The power to correct the record is not to be doubted, quite apart from the Rule,15 as this court has previously observed.16 It follows that here the District Court clearly possessed the authority to cause appropriate correction to be made, for sentencing is not a...
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Borum v. United States
...of the court's sentence is that judgment. `The commitment is mere evidence of such authority * * *'" Kennedy v. Reid, 101 U.S.App. D.C. 400, 403, 249 F.2d 492, 495 (1957), quoting Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939). See also Gilliam v. United States, 106 U.S.App.D.C. 103, ......