Miler v. United States
Decision Date | 17 July 1969 |
Docket Number | No. 4836.,4836. |
Citation | 255 A.2d 497 |
Parties | James G. MILER, Appellant, v. UNITED STATES, Appellee. |
Court | D.C. Court of Appeals |
D. William Subin, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Oliver A. Houck, Asst. U. S. Attys., were on the brief, for appellee.
Before HOOD, Chief Judge, and FICKLING and GALLAGHER, Associate Judges.
Appellant, along with another defendant, was convicted of attempted burglary, Secs. 22-103, 22-1801(b) (Supp. II, 1968), petit larceny, Sec. 22-2202, and malicious destruction of property, Sec. 22-403, (D.C. Code 1967), and each defendant was sentenced to 360 days, 360 days, and 180 days respectively, with the sentences to run consecutively. Only Miler appeals.
Upon carefully examining the record, we find no error in the trial of the case and, therefore, the convictions are affirmed. However, we remand for resentencing since the sentencing process was improper.
After the jury returned its verdict, the following colloquy took place:
Stand up, please, both of you.
Frank; 360 days each on the burglary, 180 days each on the destroying property, 360 days each on the petit larceny, consecutively with credit for the time they have been locked up.
Appellant claims that he was denied his right of allocution,1 and that the trial judge used improper considerations when he imposed sentence. The Government contends that the record clearly shows that appellant was given an opportunity to speak in his own behalf. We disagree. The Court's last question, "Do you want to say anything else?", was apparently addressed to defense counsel who had spoken before while the two defendants were seated at counsel table. The record does not reflect any reply to the question by counsel or the two defendants.
It must be clear from the record that the defendants have been personally given their opportunity for allocution. Cf. Jalbert v. District of Columbia, D.C.App., 221 A.2d 94 (1966), vacated on other grounds, 128 U.S.App.D.C. 275, 387 F.2d 233 (1967). Here, it is unclear whether the invitation to speak was addressed personally to the defendants seated before the court, affording them a clear opportunity to make statements in their own behalf and to present any information in mitigation of punishment.
It also appears that the trial judge may have used improper considerations when he imposed sentence. His refusal to refer the case to the probation office for a presentence investigation and report was based in part on the fact that, A trial judge may not penalize a defendant for not admitting guilt and expressing remorse once the jury has found him guilty....
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German v. United States, 85-1621.
...decision not to plead guilty, which effectively achieves the same result. See Hebble, supra note 9, 257 A.2d at 486; Miler v. United States, 255 A.2d 497, 498 (D.C.1969); United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1......
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