Price v. Zerbst
| Decision Date | 03 September 1920 |
| Citation | 268 F. 72 |
| Parties | PRICE v. ZERBST, Warden of United States Penitentiary. |
| Court | U.S. District Court — Northern District of Georgia |
Richard F. Price, of New York City, in pro. per.
John W Henley, Asst. U.S. Atty., for the warden.
In this case it appears: That petitioner heretofore filed an application for habeas corpus before Judge Sibley, in which petition he stated that he had been sentenced by Judge Learned Hand, in the District Court for the Southern District of New York, on April 30, 1919, to serve a term of three years upon his plea of guilty to using the mails in consummation of a scheme to defraud; that later on he had been sentenced by Judge Hand to serve two years and six months for the same offense, but was not present when such sentence was rendered-- each of these sentences being that the time should be served in the Atlanta Penitentiary. Upon the petition containing these allegations Judge Sibley correctly denied the writ, and this finding was affirmed by the Fifth Circuit Court of Appeals in 264 F. 669.
The petition now presented, and coming on to be heard before me strikes out any statement as to the three-year sentence by Judge Hand, and sets up that the warden holds this applicant under a mittimus issued on a sentence of two years and six months rendered by Judge Hand, and that the applicant was not present in court when this sentence was rendered. The record is silent as to the presence of defendant, though it should have recited his personal presence when sentence was rendered.
Under the rulings in the case of Frank v. Mangum, 237 U.S 341, 35 Sup.Ct. 582, 59 L.Ed. 969, this court can go behind the record itself and ascertain the facts tending to show whether or not the court had jurisdiction, or whether the court had lost the jurisdiction which it had once possessed. Acting under this authority, I have investigated the facts and the correspondence between Judge Hand and the applicant, and I conclude from this investigation that what happened was as follows:
The prisoner had been indicted, and, withdrawing his plea of not guilty, filed a plea of guilty, whereupon the date of sentence was fixed, and on that date, to wit, April 30, 1919 Judge Hand passed a sentence of three years, dating from October 31, 1918, which date of commencement of sentence was some six months prior to the actual rendition of the sentence; the defendant being then before the court. The defendant was then taken out of court, and later, and upon receipt of a letter from the defendant, calling attention to the fact that the commencement of the sentence was a date some six months prior to the actual rendition of it, Judge Hand changed his sentence, so as to make it read two years and six months from the time he was received in Atlanta, instead of three years from October 31, 1918, and at the time of this change in the sentence the applicant was not present before Judge Hand. The two years and six months sentence was entered upon the minutes of the court, but the three-year sentence was never entered. ...
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Wilson v. Bell, 9422.
...proceedings in the district court there. In so doing, he followed the precise course pursued by District Judge Ervin in Price v. Zerbst, D.C.N.D.Ga., 268 F. 72, where, after holding void a corrected sentence imposed by Judge Learned Hand in the Southern District of New York on a prisoner wh......
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Wilfong v. Johnston, 11253.
...present any mitigating circumstances to the court for its consideration in determining the weight of the sentence." 5 Price v. Zerbst, D.C.N.D.Ga., 268 F. 72; Rogers v. Desportes, 4 Cir., 268 F. 308, 310; Bryant v. United States, 8 Cir., 214 F. 51; Andrus v. McCauley, D.C.E.D.Wash., 21 F.Su......
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State v. Davis
...as was the case here, the presence of the defendant is as necessary as it was at the time of the original sentence. Price v. Zerbst, D.C.N.D.Ga. 1920, 268 F. 72; Crowe v. United States, 6 Cir., 1952, 200 F.2d 526; Cook v. United States, 1 Cir., 1948, 171 F.2d 567, certiorari denied 336 U.S.......
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United States v. Robinson
...jurisdiction of a petitioner in habeas corpus proceedings in an extensive opinion by Judge Martin. Referring also to the case of Price v. Zerbst, D.C., 268 F. 72, our Court of Appeals held that if a Court imposes a void sentence, it does not lose jurisdiction to impose a proper sentence at ......