CLARENCE WILLIAMS, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
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A court may alter a sentence if the defendant has not yet commenced service of the sentence and has not been transferred from the court's custody.
Appellant pleaded guilty to two counts of possession of stolen mail and was initially sentenced to concurrent terms. Before leaving the courtroom, the…
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PER CURIAM:
In this pro se case appellant has failed to file a brief within the time fixed by Rule 31, F.R.A.P., and has requested that the case be disposed of summarily pursuant to Rule 9(c) (2) of this Court. Stout v. Broom, 5 Cir. 1969, 406 F. 2d 758. The district court denied appellant’s motion to vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.
Clarence Williams was convicted on his plea of guilty on two counts of possession of stolen mail, violations of 18 U.S.C. § 1708. He was sentenced to concurrent terms of four years on each count. On that same day, however, before appellant had left the courthouse, he was returned to the courtroom and resentenced to two consecutive four year terms. The sentencing judge explained to Williams that he had intended to say “consecutively” at the earlier proceedings instead of “concurrently”.
Williams filed his motion in the court below challenging the authority of the court to alter a sentence once it has been pronounced. The court below denied the motion without a hearing.
When a defendant has not been transferred from the court's custody to a place of detention at the time his sentences are altered, service of the sentences has not officially commenced, and defendant’s rights are not impinged by the trial court’s timely alteration of his sentences. Vincent v. United States, 8 Cir. 1964, 337 F. 2d 891, cert. denied, 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281, reh. denied, 381 U.S. 947, 85 S.Ct. 1775, 14 L.Ed.2d 713; United States v. Byars, 6 Cir. 1961, 290 F. 2d 515, cert. denied, 368 U.S. 905, 82 S.Ct. 185, 7 L.Ed.2d 99, reh. denied, 368 U.S. 872, 82 S.Ct. 65, 7 L.Ed.2d 73; Kelley v. United States, 4 Cir. 1956, 235 F. 2d 44; Walton v. United States, 1953, 92 U.S.App.D.C. 26, 202 F. 2d 18; De-Maggio v. Coxe, 2 Cir. 1934, 70 F. 2d 840. Williams had not been removed from the trial court’s custody and thus had not commenced service of his sentence. Therefore, the court’s correction of his sentence was permissible. We affirm the judgment of the district court.
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Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)
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Whitehead v. State, 21 So. 3d 157 (Fla. 4th DCA 2009)
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Tywan Obara v. State, 958 So. 2d 1019 (Fla. 5th DCA 2007)
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Vincent v. United States, 337 F.2d 891 (8th Cir. 1964)
- California v. Hurst, 381 U.S. 760 (U.S. 1965)
- Ficek v. S. Pac. Co., 380 U.S. 988 (U.S. 1965)
- Thalis v. Thalis, 380 U.S. 988 (U.S. 1965)
- Ratke v. United States, 381 U.S. 939 (U.S. 1965)
- Walton v. United States (two cases), 202 F.2d 18 (D.C. Cir. 1953)
- Stout v. Sheriff, George A. Broom, 406 F.2d 758 (5th Cir. 1969)
- De Maggio v. Coxe, 70 F.2d 840 (2d Cir. 1934)
- United States v. Byars, 290 F.2d 515 (6th Cir. 1961)
- Hartford v. Wick, 368 U.S. 872 (U.S. 1961)