De Maggio v. Coxe

Second Circuit

De Maggio v. Coxe

70 F.2d 840, 1934 U.S. App. LEXIS 4330

CourtCourt of Appeals for the Second Circuit

DecidedMay 21, 1934

StatusPublished

Cited by15 cases

This text of 70 F.2d 840 (De Maggio v. Coxe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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De Maggio v. Coxe, 70 F.2d 840, 1934 U.S. App. LEXIS 4330 (2d Cir. 1934).

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Opinion

PER CURIAM.

On this application the defendant urges that the District Judge lacked jurisdiction to impose upon him a second and increased sentence contrary to his constitutional rights. He was charged with a violation of the Narcotic Act- and pleaded guilty, and on October 3, 1933, was sentenced. He was removed from the courtroom to the detention room adjoining, recalled to the courtroom, and thereupon the judge sentenced him and changed his sentence to two and a half years’ imprisonment. He is now imprisoned and detained under that sentence.

He had not been taken to a place of detention where he would commence service of his sentence when the alleged illegal sentence was imposed. Had he entered upon serving his first sentence, it could not have been increased (United States v. Benz, 282 U. S. 304, 51 S. Ct. 113, 75 L. Ed. 354) but could have been modified within the term by changing the place of imprisonment. Wall v. Aderhold, 51 F.(2d) 714 (D. C. Ga.). But, while awaiting removal to jail, he had not begun to serve his sentence. 18 USCA § 709 (a).

The application for leave to file a writ of mandamus in forma pauperis is denied.

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PER CURIAM.

On this application the defendant urges that the District Judge lacked jurisdiction to impose upon him a second and increased sentence contrary to his constitutional rights. He was charged with a violation of the Narcotic Act- and pleaded guilty, and on October 3, 1933, was sentenced. He was removed from the courtroom to the detention room adjoining, recalled to the courtroom, and thereupon the judge sentenced him and changed his sentence to two and a half years’ imprisonment. He is now imprisoned and detained under that sentence.

He had not been taken to a place of detention where he would commence service of his sentence when the alleged illegal sentence was imposed. Had he entered upon serving his first sentence, it could not have been increased (United States v. Benz, 282 U. S. 304, 51 S. Ct. 113, 75 L. Ed. 354) but could have been modified within the term by changing the place of imprisonment. Wall v. Aderhold, 51 F.(2d) 714 (D. C. Ga.). But, while awaiting removal to jail, he had not begun to serve his sentence. 18 USCA § 709 (a).

The application for leave to file a writ of mandamus in forma pauperis is denied.

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70 F.2d 840, 1934 U.S. App. LEXIS 4330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-maggio-v-coxe-ca2-1934.

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