United States v. Raftis, 20197.

• Decision Date: 16 June 1970
• Docket Number: No. 20197.,20197.
• Citation: 427 F.2d 1145
• Parties: UNITED STATES of America, Appellee, v. Doyle E. RAFTIS, Vernon F. Hawkins, Appellant, Thomas M. Bugg, Curt Martin, Melville W. Ahlmeyer, Hildreth M. Kniss, Raymond P. Guzy.
• Court: U.S. Court of Appeals — Eighth Circuit

427 F.2d 1145 (1970)

UNITED STATES of America, Appellee, v. Doyle E. RAFTIS, Vernon F. Hawkins, Appellant Thomas M. Bugg, Curt Martin, Melville W. Ahlmeyer, Hildreth M. Kniss, Raymond P. Guzy.

No. 20197.

United States Court of Appeals, Eighth Circuit.

June 16, 1970.

Henry G. Morris, St. Louis, Mo., for appellant.

Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and James M. Gordon, Asst. U. S. Atty., for appellee.

Before MATTHES, HEANEY and BRIGHT, Circuit Judges.

PER CURIAM.

Appellant Vernon F. Hawkins, whose conviction on eighteen counts of mail fraud we affirmed on direct appeal, sub nom. Raftis v. United States, 364 F.2d 948 (8th Cir. 1966), sought release from the burdens of part of his sentence in the United States District Court for the Eastern District of Missouri through a Federal Rules of Criminal Procedure 35 motion for modification and correction of the sentence. The district court denied relief, and he appealed.

Hawkins urges that following his conviction the trial court pronounced sentences which in legal effect were concurrent rather than consecutive. We review those sentences and his service of them.

Following his jury trial, the federal district judge sentenced Hawkins on the first nine counts to three years in the custody of the Attorney General. Appellant places no present objection to these convictions nor to his confinement thereunder. On the additional nine counts, the trial judge sentenced Hawkins to serve two years concurrently on each count in the custody of the Attorney General. The court added this directive:

However, the Court will grant probation as to these nine charges, which probation will begin at the end of the service of three years imposed concurrently * * * on the first nine counts.

The judgment of conviction, referring to probation for the latter nine counts, reads:

* * * Said defendant sentenced to two (2) years imprisonment under each of Counts * * * 15 through 23, terms to run concurrently with each other; execution of sentence * * * suspended and defendant placed on probation thereunder for two (2) years, such period of probation to begin at the expiration of the concurrent terms imposed upon defendant under each of Counts 1, 4, 5, 8, 9, 10, 11, 12 and 13.

Hawkins commenced service of his three-year concurrent sentences on October 23, 1966. He received a parole from the federal institution at Terre Haute, Indiana, on April 1, 1968. Following the passage of three full years from the commencement of those sentences, that is on October 23, 1969, he began the two-year probationary period resulting from his conviction on counts fifteen through twenty-three.

Appellant claims a material variance exists between the oral pronouncement of his sentence and the written judgment; that the oral pronouncement controls and its legal effect entitled him to concurrent running of all sentences on all counts. While an oral pronouncement prevails over a contrary judgment which may be entered, Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936); United States v. Morse, 344 F.2d 27, 29 n. 1 (4th Cir. 1965); and although the law construes ambiguous language in a sentence pronouncement...