Whitehead v. United States

• Decision Date: 29 May 1946
• Docket Number: No. 10182.,10182.
• Citation: 155 F.2d 460
• Parties: WHITEHEAD v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

155 F.2d 460 (1946)

WHITEHEAD v. UNITED STATES.

No. 10182.

Circuit Court of Appeals, Sixth Circuit.

May 29, 1946.

No appearance for appellant.

W. E. Badgett, of Chattanooga, Tenn. (James B. Frazier, Jr., Otto T. Ault, and Ferdinand Powell, Jr., all of Chattanooga, Tenn., on the brief), for appellee.

Before HICKS, SIMONS and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

The appellant's grievance is the dismissal of his motion for the correction of an allegedly invalid sentence for lack of jurisdiction by the district court to entertain it. He asserts here, however, all the grounds upon which his claim of invalidity was based, and they present questions of law which govern the whole controversy and therefore require our decision.

In September, 1935, the appellant was indicted for three violations of the Dyer Act, 18 U.S.C.A. § 408. Upon pleas of guilty he was sentenced to three years imprisonment on each of two indictments, sentences to run concurrently, and upon the third, sentence was suspended and the appellant placed on probation. The period of probation was not specified in the sentence and its terms and conditions were to be governed by those prescribed by the Department of Justice. On July 20, 1938, the appellant was released from the federal penitentiary at Atlanta, from which date his probationary period began. On January 20, 1939, he pleaded guilty to other violations of the Dyer Act. Upon accepting the plea the court imposed a sentence of five years on each of several counts to run concurrently, and at the same time revoked the probation previously granted, because of a violation of its terms, and sentenced the appellant to an additional five years imprisonment to begin with the expiration of the last imposed sentence.

More than six years later, on October 3, 1945, the appellant moved in the district court that the sentence imposed upon revocation of his probation, be set aside, claiming the judgment to be void for want of jurisdiction in that he had never been properly placed on probation within the meaning of the Probation Act, 18 U.S.C.A. § 724 et seq. On October 8, 1945, the court dismissed the motion because of lack of jurisdiction, and from its order of dismissal this appeal was taken.

The court was empowered to entertain the motion to set aside the sentence on the ground of invalidity. Waldron v. United States, 6 Cir., 146 F.2d 145. Compare Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392, with United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129. See also Gilmore v. United States, 10 Cir., 124 F.2d 357; Gargano v. United States, 9 Cir., 140 F.2d 118; Bowen v. United States, 5 Cir., 134 F.2d 845; Miller v. United States, 5 Cir., 128 F. 2d 519; Garrison v. Reeves, 8 Cir., 116 F. 2d 978; Meyers v. United States, 5 Cir., 116 F.2d 601. The meritorious questions upon which the motion was based nevertheless call for decision.

The appellant's principal contention is that the probation was void under the statute, because of the indefiniteness of its duration, because no terms and conditions of probation were incorporated in the sentence and because he was never taken under the supervision of the probation officer. The short answer to that contention is that if the probation sentence was a nullity the appellant was never sentenced under the third of the earlier series of indictments, and that the sentence subsequently imposed thereon was valid. There was, however, no invalidity in the sentence placing the appellant on probation. Hollandsworth v. United States, 4 Cir., 34 F.2d 423. Section 1 of the Probation Act, 18 U.S.C.A. §§ 724 to 727, expressly directs the judge, when exercising the power to suspend sentence and place the defendant upon probation, to fix such terms and conditions as he may deem required. Fixing the terms and conditions of probation is a judicial act which may not be delegated. This does not mean, however, that the court may not adopt and incorporate into a sentence terms and conditions of probation, recommended to it by an administrative agency of the government, and to impose such further terms and conditions as to it may seem best. Undoubtedly it is the better...