United States v. Pruitt, 16646.

• Decision Date: 27 June 1968
• Docket Number: No. 16646.,16646.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Percy PRUITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.2d 502 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Percy PRUITT, Defendant-Appellant.

No. 16646.

United States Court of Appeals Seventh Circuit.

June 27, 1968.

Percy Pruitt, pro se.

Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Gerald M. Werksman, William P. Cagney, Asst. U. S. Attys., of counsel, for appellee.

Before CASTLE, Chief Judge, and HASTINGS and KILEY, Circuit Judges.

HASTINGS, Circuit Judge.

Defendant Percy Pruitt appeals pro se from a final order of the district court denying his motion for correction of sentence, filed pursuant to Rule 35, Federal Rules of Criminal Procedure, Title 18, U.S.C.A. This cause was ordered submitted on the record and briefs, without oral argument.

Defendant was tried to the district court, jury trial having been waived, on a four-count indictment charging violations of the federal narcotics laws. He was found guilty and sentenced on April 6, 1963 to serve a total of six years imprisonment. He was represented by counsel at his trial.

On April 9, 1963, three days after sentence, defendant, pursuant to Rule 38(a) (2), as it existed prior to July 1, 1966 and at the time of sentencing,¹ elected not to begin serving his sentence and he so notified the district court in writing by letter.

Two days later, on April 11, 1963, defendant's trial attorney wrote to defendant and stated that he no longer desired to represent defendant.

On July 29, 1963, we appointed an attorney to represent defendant on his appeal from the conviction. The appeal was heard by this court and the conviction was affirmed April 9, 1964. United States v. Pruitt, 7 Cir., 331 F.2d 232.

On May 4, 1964, defendant's sentence began to run. The total elapsed time from April 9, 1963 to May 4, 1964 is 390 days. By his Rule 35 motion, defendant sought credit on his sentence for the 390 days he spent incarcerated in jail pending his appeal. This the district court denied and such denial is the subject of this appeal.

The principal question before us is whether a defendant who has signed an election not to begin serving his sentence, pursuant to Rule 38(a) (2) as it existed in 1963, is entitled to credit for the time he spent in jail pending the determination of his appeal.

It seems clearly established that, prior to the 1966 amendment to Rule 38(a) (2), the defendant's election not to begin serving his sentence serves to exclude credit for time spent in custody after sentence, such as while on appeal. See notes of the Advisory Committee on Criminal Rules proposing the 1966 amendment; the legislative history commenting on the effect of prior Rule 38(a) (2);² and Leyvas v. United States, 9 Cir., 371 F.2d 714, 718 (1967), and cases cited therein.

The reason for this interpretation is well stated in Leyvas, supra, at 718:

"The rule has long been recognized that where under Rule 38(a) (2), as it existed prior to July 1, 1966, a convicted person appeals and elects not to commence service of the sentence, he is deprived of the right to claim credit for the time spent in jail pending the disposition of the appeal. This is because, under 18 U.S.C. 3568, a sentence begins to run when the defendant is received at the place of service (citing cases). Thus, under Rule 38(a) (2), as it existed prior to 1966 * * *, applicants seeking an order requiring the warden to give them credit on the sentence(s) for time spent in custody pending the appeal, have been uniformly denied. (citing cases)."

Additionally, defendant contends that his election was taken without the advice of counsel. However, he acknowledges that he wrote a letter to the district court on April 9, 1963, whereby he elected not to serve. At that time, defendant was represented by his trial counsel who two days later (April 11, 1963) wrote to defendant and stated he no longer desired to represent him. It would appear, with no showing to the contrary, that defendant acted pro se in making his election not to serve.

Further, as earlier mentioned, we appointed counsel to represent defendant on appeal. Had defendant desired legal advice on his election not to serve and had he acted thereon he could have taken steps to revoke his waiver and begun serving his sentence on or about July 29, 1963. See Shelton v. United States, 5 Cir., 234 F.2d 132, 134 (1956).

We have examined authorities cited by defendant and find them inapposite.

We hold that the district court correctly denied defendant credit on his sentence for the time spent in jail pending his appeal.

The order of the district court appealed from is affirmed.

Affirmed.

KILEY, Circuit Judge (concurring).

I concur in the result reached in this case.

The sole ground relied upon in the district court by defendant to support his motion was his contention that any person who is confined in jail prior to commencing the service of a jail sentence must be granted credit for that time against his sentence if the reason for the...