Rakes v. United States

Decision Date29 October 1962
Docket NumberNo. 8576.,8576.
PartiesWillie Junior RAKES, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Thomas S. Word, Jr., Richmond, Va. (Court-assigned counsel), for appellant.

Lawrence C. Musgrove, Asst. U. S. Atty., for appellee.

Before SOPER, HAYNSWORTH and BRYAN, Circuit Judges.

SOPER, Circuit Judge.

On February 13, 1961, Willie Junior Rakes, the defendant appellant, entered a plea of guilty in the District Court to eight separate indictments in each of which he was charged, along with other persons, with removing and concealing, at various times in September and October, 1960, a certain quantity of distilled spirits on which the tax had not been paid, in violation of 26 U.S.C. § 5601(a) (12). Thereupon, the District Judge imposed a sentence of one year imprisonment in each of the eight cases. In each of four cases succeeding the first case in which sentence was imposed, the court directed that the sentence be served "consecutively with" the sentence of one year theretofore imposed in a prior case; and in each of three cases succeeding the first case the Judge directed that the sentence of one year be served "concurrently with" the sentence theretofore imposed in one of the prior cases. The result was, as the Judge announced, that the defendant was sentenced to serve a total of five years in prison, one year in each of five cases to run consecutively and one year in each of three cases to run concurrently with the sentence imposed in one of the five other cases.

The eight indictments were not numbered at the time the sentences were imposed, and the particular indictment which the Judge had in mind in imposing sentence in each case was identified by reference to the date of the offense, the quantity of illicit whiskey involved and the names of the co-defendants set out in the indictment. Subsequently, the indictments were given numbers. The Judge signed a separate formal judgment of sentence in each case, but unfortunately the numbers did not follow the sequence in which the oral sentences had theretofore been pronounced. The result was the same insofar as the total time of imprisonment of five years was concerned, but in four instances the written sentence was made to run "consecutively to" or "concurrently with" a different sentence than that indicated in the oral pronouncement. The present situation is that the defendant has served the sentence first pronounced and is now serving a consecutive sentence under a written judgment, No. 6403, in a case other than the case designated in the oral judgment, No. 6407.

Pursuant to Rule 35 of the Federal Rules of Criminal Procedure which provides that the court may correct an illegal sentence at any time, defendant filed, on August 3, 1961, a motion in the District Court to vacate or to correct the sentences imposed on February 13, 1961. In the District Court, as he does here, the the defendant conceded that the sentence of one year imprisonment in the first case taken up by the court, which had been given the number 6410, was legal and valid; but he contended that the sentences subsequently imposed in four cases, Nos. 6403, 6406, 6407 and 6408, each of which was made to run for one year "consecutively with" the sentence of one year imposed in a prior case, were ambiguous and uncertain, and therefore are void. The District Judge being of the opinion that the case fell within the purview of 28 U.S.C. § 2255, since it pertained to sentences alleged to have been imposed in violation of law, caused notice of the motion to be served on the United States Attorney and held a hearing upon the motion, the answer of the United States Attorney and a reply thereto by the defendant. The District Judge reached the conclusion that there was no ambiguity in the sentences, particularly as the court had notified the petitioner that he was to serve five years in prison, one year each in five of the cases and one year each in three of the cases to run concurrently with the sentences imposed in one of the five cases. He, therefore, dismissed the motion. There followed the present appeal, which the defendant has been permitted to take in forma pauperis with the assistance of the court appointed counsel.

The principal contention now presented on behalf of the defendant is that all of the sentences except the first are invalid...

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36 cases
  • U.S. v. Villano, 85-2535
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Agosto 1986
    ...43 that the defendant be present at sentencing unless his punishment is to be reduced under Fed.R.Crim.P. 35. See Rakes v. United States, 309 F.2d 686, 687 (4th Cir.1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1543, 10 L.Ed.2d 694 The history of the presence privilege was traced in United St......
  • Thomas v. Cunningham
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 8 Enero 1963
    ...is entitled to be present at all stages of his trial. See Near v. Cunningham, 313 F.2d 929 (4th Cir., 1963). Cf., Rakes v. United States, 309 F.2d 686 (4th Cir., 1962). And yet one who is mentally deranged may be as far removed from the proceedings as if physically absent. What the petition......
  • U.S. v. Villano
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 21 Abril 1987
    ...43 that the defendant be present at sentencing unless his punishment is to be reduced under Fed.R.Crim.P. 35. See Rakes v. United States, 309 F.2d 686, 687 (4th Cir.1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1543, 10 L.Ed.2d 694 The history of the presence privilege was traced in United St......
  • State v. Puthoff, 19606
    • United States
    • South Dakota Supreme Court
    • 5 Diciembre 1996
    ...Borum v. United States, 409 F.2d 433 (D.C.Cir.1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969); Rakes v. United States, 309 F.2d 686 (4th Cir.1962)); see also State v. Cady, 422 N.W.2d 828, 830 (S.D.1988) (collecting additional federal cases to support the proposition......
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