Thomas v. United States, 71-1938 Summary Calendar.

• Decision Date: 31 January 1972
• Docket Number: No. 71-1938 Summary Calendar.,71-1938 Summary Calendar.
• Citation: 455 F.2d 469
• Parties: Bobby Joe THOMAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 469 (1972)

Bobby Joe THOMAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 71-1938 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 31, 1972.

Bobby J. Thomas, pro se.

Seagal V. Wheatley, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., William S. Sessions, U. S. Atty., for respondent-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM:

Thomas raises two contentions on this petition for rehearing. Both are without merit.

First, Thomas alleges that he was subjected to double jeopardy when, upon the new trial we ordered in Thomas v. United States, 5 Cir. 1969, 418 F. 2d 567, he was tried upon two of the three counts in the indictment which the original trial judge had treated as surplusage for the purposes of sentencing. Thomas had been convicted at his original trial on all six counts of the indictment. But this contention is wide of the mark "since it is based on the false assumption that the court's failure to sentence him under the three counts treated as surplusage amounted to a constructive acquittal of those counts. By sentencing Thomas under one count only, the trial court was merely complying with the plethora of cases prohibiting the pyramiding of sentences for overlapping offenses under 18 U.S.C. § 2113." Forrester v. United States, 5 Cir. 1971, 456 F.2d 905. Since there was no acquittal in treating the two counts as surplusage, there could be no double jeopardy in retrying Thomas on those two counts.

Second, Thomas argues that he was denied the right to plead anew to the indictment before being retried. Presumably, Thomas might have wished to plead guilty in the hopes of obtaining a lighter sentence. But Thomas has never alleged that he indicated a desire to change his plea prior to the commencement of his second trial; and the record reveals not the slightest protest or utterance from Thomas which might have led the district court to suspect that Thomas wished to plead anew. It has long been settled that "a waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by,...