United States v. Adams

Citation362 F.2d 210
Decision Date21 June 1966
Docket NumberNo. 16506.,16506.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andrew D. ADAMS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Pierce E. Cunningham, Cincinnati, Ohio (Court appointed), for appellant.

Robert J. Rotatori, Asst. U. S. Atty., Cleveland, Ohio, for appellee, Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on the brief.

Before O'SULLIVAN, EDWARDS and CELEBREZZE, Circuit Judges.

EDWARDS, Circuit Judge.

Defendant-appellant was tried and convicted before a jury in the United States District Court for the Northern District of Ohio. He was found guilty on all five counts of an indictment charging use of interstate wires to perpetrate a scheme to defraud the Akron Dime Bank in violation of Title 18 U.S.C. § 1343 (1964), and transportation across state lines of stolen money in violation of Title 18 U.S.C. § 2314 (1964).

On January 21, 1965, defendant was sentenced to serve a term of ten years on Count 3 and one year each on the other four counts, with all sentences running concurrently with each other. Defendant was then taken to a federal penitentiary to commence serving of his sentences.

Subsequently, the court's attention was called to the fact that the maximum sentence provided by Title 18 U.S.C. § 1343 was five years, whereas on Count 3 (charging violation of that statute) defendant-appellant had been sentenced to ten years.

On February 18, 1965, the District Judge vacated all of the sentences entered on January 21, 1965. Obviously seeking to correct the illegal sentence, while giving full effect to his originally intended ten-year total sentence, the District Judge then sentenced defendant to ten years on Count 2 and one year on all the other counts, with all sentences to run concurrently. The effect of his action was to vacate the illegal ten-year sentence on Count 3 and reduce it to one year, and to vacate the legal sentence on Count 2 and increase it to ten years.

Appellant, appearing in forma pauperis by court appointed counsel, claims that the vacating of a legal sentence on Count 2 and the increase of it from one to ten years is not authorized by Rule 35 and is in violation of the constitutional prohibition against double jeopardy.

Rule 35 provides as follows:

"The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari." Rule 35 Fed.R.Crim.P.

This rule specifically authorized the correction of an "illegal sentence" and hence authorizes the District Judge to vacate the illegal ten year sentence on Count 3 and resentence in conformity with the statute. The rule also provides that the court "may reduce the sentence within 60 days after the sentence is imposed." It does not purport to provide for increasing the sentence.

The appellee argues that the District Judge was well within the authority of Rule 35 in vacating the ten year sentence on Count 3 and correcting same because the sentence was not authorized by the statute. There is much authority for this claim and we agree. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

The serious question posed by this case, however, is whether the District Judge also had legal and constitutional authority to vacate the perfectly legal sentence on Count 2 and increase it from one to ten years. As to this question appellee cites no authority, other than Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), where the error in sentence was discovered and corrected the same day and the increase in sentence amounted to adding a statutorily required fine of $100.

We do not deal in this case with a clerical error or an error corrected the same day. It is also clear that in this case the judge in administering the original sentence on Counts 2 and 3 made no mistake in confusing the counts or in failing to have accurately in...

To continue reading

Request your trial
34 cases
  • U.S. v. Busic, s. 77-1375
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 30, 1981
    ...Whaley v. North Carolina, 379 F.2d 221 (4th Cir. 1967); Chandler v. United States, 468 F.2d 834 (5th Cir. 1972); United States v. Adams, 362 F.2d 210 (6th Cir. 1966); United States v. Turner, 518 F.2d 14 (7th Cir. 1975); United States v. Durbin, 542 F.2d 486 (8th Cir. 1976); United States v......
  • North Carolina v. Pearce Simpson v. Rice
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354; United States v. Sacco, 2 Cir., 367 F.2d 368; United States v. Adams, 6 Cir., 362 F.2d 210; Ken edy v. United States, 9 Cir., 330 F.2d 12 We have spoken in terms of imprisonment, but the same rule would be equally ap......
  • Patton v. State of North Carolina, 11005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 14, 1967
    ...v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L. Ed. 354 (1931); United States v. Sacco, 367 F.2d 368 (2d Cir. 1966); United States v. Adams, 362 F.2d 210 (6th Cir. 1966); Kennedy v. United States, 330 F.2d 26 (9th Cir. We perceive no constitutionally significant distinction between the incr......
  • State of Texas v. Grundstrom, 25423.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 25, 1968
    ...v. United States, 374 F.2d 583 (1 Cir. 1967); United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2 Cir. 1965); United States v. Adams, 362 F.2d 210 (6 Cir. 1966). He further claims that his contentions fall within the spirit and meaning of Green v. United States, 355 U.S. 184, 78 S.Ct.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT