Pedro Rodriguez v. United States

Fifth Circuit

Pedro Rodriguez v. United States

261 F.2d 128

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 12, 1959

Docket17154

StatusPublished

Cited by2 cases

This text of 261 F.2d 128 (Pedro Rodriguez 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.

Bluebook

Pedro Rodriguez v. United States, 261 F.2d 128 (5th Cir. 1959).

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Opinion

PER CURIAM.

On his plea of guilty, specifically entered to each of three counts, of a narcotics law violation indictment, and his admission that he was a second offender, under the terms of the Boggs Act, 21 U.S.C.A. § 174, appellant received a general sentence of 12 years and $100 fine. Subsequently, on his own motion, the trial court called the appellant back before him and modified the sentence so as to read: five years on count 1, seven years on count 2 and seven years on count 3, with a fine of $100 on each of the three counts. The two seven year sentences were to run concurrently and consecutively to the five year sentence. Thereafter appellant filed his motion for vacation of sentence, which the trial court denied on November 18, 1957. On January 30, 1958, the trial court again amended the sentence by reducing the fine from a total of $300 to $100. Thereafter, on March 7, 1958, appellant filed his notice of appeal.

Appellant here contends that the orders of the trial court modifying his sentences, including the upward revision of the fine from $100 to $300 have somehow infected his sentence with illegality requiring that it be vacated.

*130 The sentence of 12 years in gross was a legal sentence, inasmuch as a total sentence of 30 years could have been meted out to appellant. Reed v. United States, 5 Cir., 142 F.2d 435. The part of the amended sentence that specifically allocated the terms as between the several counts did not in any way increase his time of service. It was a legal modification. The imposition of a fine of $100 on each of the counts after the initial sentence had imposed only one general fine of $100 was erroneous. “The court may correct an illegal sentence at any time.” Rule 35, Fed.Rules Crim.Proc., 18 U.S.C.A. Thus, the correction of January 30, 1958, reducing the fine again to $100 is permitted by the rules. It obviously did not harm the appellant.

The other points urged by appellant have been considered but are not deemed substantial enough to warrant separate discussion.

The judgment is affirmed.

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PER CURIAM.

On his plea of guilty, specifically entered to each of three counts, of a narcotics law violation indictment, and his admission that he was a second offender, under the terms of the Boggs Act, 21 U.S.C.A. § 174, appellant received a general sentence of 12 years and $100 fine. Subsequently, on his own motion, the trial court called the appellant back before him and modified the sentence so as to read: five years on count 1, seven years on count 2 and seven years on count 3, with a fine of $100 on each of the three counts. The two seven year sentences were to run concurrently and consecutively to the five year sentence. Thereafter appellant filed his motion for vacation of sentence, which the trial court denied on November 18, 1957. On January 30, 1958, the trial court again amended the sentence by reducing the fine from a total of $300 to $100. Thereafter, on March 7, 1958, appellant filed his notice of appeal.

Appellant here contends that the orders of the trial court modifying his sentences, including the upward revision of the fine from $100 to $300 have somehow infected his sentence with illegality requiring that it be vacated.

*130 The sentence of 12 years in gross was a legal sentence, inasmuch as a total sentence of 30 years could have been meted out to appellant. Reed v. United States, 5 Cir., 142 F.2d 435. The part of the amended sentence that specifically allocated the terms as between the several counts did not in any way increase his time of service. It was a legal modification. The imposition of a fine of $100 on each of the counts after the initial sentence had imposed only one general fine of $100 was erroneous. “The court may correct an illegal sentence at any time.” Rule 35, Fed.Rules Crim.Proc., 18 U.S.C.A. Thus, the correction of January 30, 1958, reducing the fine again to $100 is permitted by the rules. It obviously did not harm the appellant.

The other points urged by appellant have been considered but are not deemed substantial enough to warrant separate discussion.

The judgment is affirmed.

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261 F.2d 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedro-rodriguez-v-united-states-ca5-1959.

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