Smallwood v. United States
| Decision Date | 04 December 1967 |
| Docket Number | No. 24012.,24012. |
| Citation | 386 F.2d 175 |
| Parties | Darrell Wayne SMALLWOOD, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. McPherson, New Orleans, La., for appellant.
Edward L. Shaheen, U. S. Atty., Q. L. Stewart, Charles E. Welsh, Asst. U. S. Attys., Shreveport, La., for appellee.
Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.
This is an appeal from a motion for correction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure.
Appellant was charged and pled guilty to a violation of the Dyer Act, 18 U.S.C. § 2312.
At the time of his sentence the following colloquy between the court and the defendant ensued:
The written sentence is "for a period of five (5) years, said sentence to run consecutive with sentence defendant is presently serving, which was for five years under Section 4208 (a) (2) imposed February 5, 1965, in the United States District Court, Western District of Missouri."
Appellant contends (1) the sentence was invalid for uncertainty, (2) there was error in summarily increasing the sentence from three to five years, (3) waiver of counsel did not extend to the sentence of five years.
It is our view that the sentence is ambiguous and for that reason invalid. As stated in United States ex rel. Chasteen v. Denemark, 7 Cir., 138 F.2d 289:
"A sentence in a criminal case should be clear and definite * * * and be so complete as to need no construction of a court to ascertain its import."
The same test was applied by this Court in Benson v. United States, 332 F.2d 288. In the case before us the oral pronouncement of the sentence refers to two previous sentences, whereas the written judgment refers only to one five year sentence imposed in the Western District of Missouri. As the situation now stands appellant cannot know when his new sentence imposed by the United States District Court of the Western District of Louisiana is to be served in relation to the Arkansas sentence. It may be consecutive with the Arkansas sentence as well as the sentence then being served at Leavenworth, as the oral pronouncement indicates, or it may be...
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...22 L.Ed.2d 566 (1969); United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94, 98 (5th Cir.1982). In Smallwood v. United States, 386 F.2d 175 (5th Cir.1967), the court enunciated a standard for testing the validity of a criminal sentence. The court held that "a sentence in a crim......
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U.S. v. Theriault
...to count 1, were mere surplusage. Compare, Chunn v. Clark, 5 Cir. 1971, 451 F.2d 1005, 1006. Appellant's reliance on Smallwood v. United States, 5 Cir. 1967, 386 F.2d 175, is misplaced. In Smallwood, the Judge's oral pronouncement ordered the imposed sentence to be served consecutively with......