Paul Albert Patterson v. United States

Fifth Circuit

Paul Albert Patterson v. United States

386 F.2d 142, 1967 U.S. App. LEXIS 4336

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 1, 1967

Docket24345

StatusPublished

Cited by8 cases

This text of 386 F.2d 142 (Paul Albert Patterson v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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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Paul Albert Patterson v. United States, 386 F.2d 142, 1967 U.S. App. LEXIS 4336 (5th Cir. 1967).

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Opinion

PER CURIAM:

Appellant was convicted by the District Court sitting without a jury of mailing obscene photographs of himself and others in violation of 18 U.S.C.A. § 1461. The written judgment provided that appellant was to serve 5 years, to pay a fine of $1,000.00, and to stand committed if the fine was not paid. The oral pronouncement at the conclusion of the trial did not provide for commitment if tHte fine was not paid. Appellant filed a motion to correct the sentence under Rule 35 based on the variance between the written judgment setting forth the sentence and the oral pronouncement. The Court erroneously denied the motion. The Government conceded that the written judgment should conform to the oral pronouncement of sentence. Such conformity is salutary and commanded *143 by Henley v. Heritage, 5 Cir. 1964, 337 F.2d 847, 848, in these words :

“Since we hold that the orally pronounced sentence adequately indicated the sentence sequence, it is of no consequence that the judgment and commitments were ambiguous in this regard. Rule 43, F.R.Crim.P., requires that the defendant be present when sentence is announced by the court, and Rule 32(b) requires that the judgment of conviction shall set forth the sentence. It follows that where there is a discrepancy between the oral pronouncement and the written judgment and commitment, the former must control. See Kennedy v. Reid, 1957, 101 U.S.App.D.C. 400, 249 F.2d 492; Payne v. Madigan, 9 Cir. 1960, 274 F.2d 702, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853.”

Reversed.

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PER CURIAM:

Appellant was convicted by the District Court sitting without a jury of mailing obscene photographs of himself and others in violation of 18 U.S.C.A. § 1461. The written judgment provided that appellant was to serve 5 years, to pay a fine of $1,000.00, and to stand committed if the fine was not paid. The oral pronouncement at the conclusion of the trial did not provide for commitment if tHte fine was not paid. Appellant filed a motion to correct the sentence under Rule 35 based on the variance between the written judgment setting forth the sentence and the oral pronouncement. The Court erroneously denied the motion. The Government conceded that the written judgment should conform to the oral pronouncement of sentence. Such conformity is salutary and commanded *143 by Henley v. Heritage, 5 Cir. 1964, 337 F.2d 847, 848, in these words :

“Since we hold that the orally pronounced sentence adequately indicated the sentence sequence, it is of no consequence that the judgment and commitments were ambiguous in this regard. Rule 43, F.R.Crim.P., requires that the defendant be present when sentence is announced by the court, and Rule 32(b) requires that the judgment of conviction shall set forth the sentence. It follows that where there is a discrepancy between the oral pronouncement and the written judgment and commitment, the former must control. See Kennedy v. Reid, 1957, 101 U.S.App.D.C. 400, 249 F.2d 492; Payne v. Madigan, 9 Cir. 1960, 274 F.2d 702, aff’d by an equally divided Court, 1961, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853.”

Reversed.

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386 F.2d 142, 1967 U.S. App. LEXIS 4336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-albert-patterson-v-united-states-ca5-1967.

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