Simpson v. Rice, No. 25412.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTUTTLE and DYER, Circuit , and MEHRTENS
Citation396 F.2d 499
PartiesCurtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Appellant, v. William S. RICE, Appellee.
Docket NumberNo. 25412.
Decision Date12 November 1968

396 F.2d 499 (1968)

Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Appellant,
v.
William S. RICE, Appellee.

No. 25412.

United States Court of Appeals Fifth Circuit.

May 30, 1968.

Certiorari Granted November 12, 1968.


Paul T. Gish, Jr., Asst. Atty. Gen., Montgomery, Ala., MacDonald Gallion, Atty. Gen. of Ala., for appellant.

Oakley Melton, Jr., Thomas S. Lawson, Jr., Steiner, Crum & Baker, Montgomery, Ala., for appellee.

Before TUTTLE and DYER, Circuit Judges, and MEHRTENS, District Judge.

TUTTLE, Circuit Judge.

William S. Rice in February, 1962, entered pleas of guilty in four separate criminal cases in the Circuit Court of Pike County, Alabama. He was sentenced to a total of ten years in the state penitentiary, the term consisting of four separate sentences, the first for four years and the remaining three for two years each. In August, 1964, the judgments and sentences in these cases were set aside by the Circuit Court of Pike County in a corum nobis proceeding on the ground that appellee was not represented by counsel at the time of his original pleas.

The petition for habeas corpus to the District Court alleged that the appellee was retried in three of the four cases at which time the same trial court sentenced him to a total of twenty-five years, the term consisting of a sentence of ten years on each of the first two charges and five years on the third. The fourth charge was dismissed because of the absence of a witness. Rice attacked these subsequent sentences to the extent that they exceeded the original sentences on the original pleas of guilty and to the extent that they did not also give him credit for the time served under the vacated sentences.

The trial court overruled the State's motion to dismiss the petition for failure to exhaust state remedies, there being at the time of the hearing no adequate state procedure which the appellee was required to pursue. Although an intervening decision by the Court of Appeals of Alabama, Goolsby v. State, Sixth Division 202 (not reported) might have some bearing on the merits of this case, under the principles of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, we should not remand the case to require

396 F.2d 500
the appellee to pursue a state remedy at this stage of the proceedings

The District Court entered a judgment granting the relief sought by the appellee. It would be useless for us to add to the reasoning or conclusions announced by the trial court whose...

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18 practice notes
  • United States v. Coke, No. 529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 27, 1968
    ...Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L.J. 395, 399 n. 25. In Simpson v. Rice, 396 F.2d 499 (5 Cir. 1968), now before the Supreme Court, the state court on resentence had denied credit for time served under the original sentence, and i......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge Johnson's opinion,' 396 F.2d 499, 500, and we granted certiorari. 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268. The problem before us5 involves two related but analytically s......
  • Tatum v. Schering Corp.
    • United States
    • Supreme Court of Alabama
    • March 18, 1988
    ...in a criminal case by a trial or appellant court after the sentence is imposed. Rice v. Simpson, 274 F.Supp. 116 (1967), affirmed, 396 F.2d 499 (5th Cir.1968), affirmed, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because the purpose of punitive damages is not to compensate the plai......
  • Michigan v. Payne 8212 1005, No. 71
    • United States
    • United States Supreme Court
    • May 21, 1973
    ...(CA1 1967); United States v. Coke, 404 F.2d 836 (CA2 1968) (en banc); Patton v. North Carolina, 381 F.2d 636 (CA4 1967); Simpson v. Rice, 396 F.2d 499 (CA5 1968); United States v. White, 382 F.2d 445 (CA7 1967). So had the California Supreme Court, in a powerful opinion by Justice Traynor. ......
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18 cases
  • United States v. Coke, No. 529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 27, 1968
    ...Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L.J. 395, 399 n. 25. In Simpson v. Rice, 396 F.2d 499 (5 Cir. 1968), now before the Supreme Court, the state court on resentence had denied credit for time served under the original sentence, and i......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge Johnson's opinion,' 396 F.2d 499, 500, and we granted certiorari. 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268. The problem before us5 involves two related but analytically s......
  • Tatum v. Schering Corp.
    • United States
    • Supreme Court of Alabama
    • March 18, 1988
    ...in a criminal case by a trial or appellant court after the sentence is imposed. Rice v. Simpson, 274 F.Supp. 116 (1967), affirmed, 396 F.2d 499 (5th Cir.1968), affirmed, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because the purpose of punitive damages is not to compensate the plai......
  • Michigan v. Payne 8212 1005, No. 71
    • United States
    • United States Supreme Court
    • May 21, 1973
    ...(CA1 1967); United States v. Coke, 404 F.2d 836 (CA2 1968) (en banc); Patton v. North Carolina, 381 F.2d 636 (CA4 1967); Simpson v. Rice, 396 F.2d 499 (CA5 1968); United States v. White, 382 F.2d 445 (CA7 1967). So had the California Supreme Court, in a powerful opinion by Justice Traynor. ......
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