Bartone v. United States

375 U.S. 52, 84 S. Ct. 21, 11 L. Ed. 2d 11, 1963 U.S. LEXIS 350

• Court: Supreme Court of the United States
• Decided: October 28, 1963
• Docket: 337
• Status: Published

Opinions

Per Curiam.

Although there were other questions before the Court of Appeals, the sole question presented by this petition is stated as follows:

“May a United States District Judge orally revoke the probation of a Defendant in open court and in the presence of the Defendant and his counsel and impose a sentence of confinement for a specific period of time and thereafter enter a formal written judgment and commitment in which a larger and longer sentence of confinement is imposed and set forth?”

It appears that on September 14, 1962, petitioner and his counsel appeared in the District Court, at which time a sentence of confinement of one year was imposed. Subsequently, and in petitioner’s absence, the court enlarged the penalty by one day.

The propriety of this enlargement of the sentence, along with other questions, was presented on the appeal to the Court of Appeals, which made no mention of it in its opinion. 317 F. 2d 608. The Court of Appeals did, however, deny a motion of the United States to remand the cause for the purpose of correcting the sentence — relief to which the United States concedes petitioner is entitled.¹ See Rakes v. United States, 309 F. 2d 686. The only question is whether the error will be corrected here and now or whether petitioner will be remitted to his remedy under Rule 35 of the Federal Rules of Criminal Procedure ; and whether petitioner will be advantaged by one procedure or another is not our concern.

This error, in enlarging the sentence in the absence of petitioner, was so plain in light of the requirements of Rule 43 ² that it should have been dealt with by the Court of Appeals, even though it had not been alleged as error.

As seen from our Miscellaneous Docket for 1962, the use of collateral proceedings for relief from federal judgments of conviction is considerable:

October Term, 1962. — Miscellaneous Docket.

totals.

Federal prisoners:

Direct attack. 109

28 U. S. C. § 2255. 93

Habeas corpus through federal courts. 38

Original habeas corpus (in this Court). 40

Rule 35, Fed. Rules Crim. Proc. 4

284

Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding. See Fay v. Noia, 372 U. S. 391. But the situation is different in federal proceedings, over which both the Courts of Appeals and this Court (McNabb v. United States, 318 U. S. 332) have broad powers of supervision. It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding.

We grant certiorari and reverse the judgment denying correction of the sentence.

1 Rule 43 of the Federal Rules of Criminal Procedure provides:

“The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence. The defendant’s presence is not required at a reduction of sentence under Rule 35.”

2 Supra, note 1.