FICKLING Associate Judge:
Appellant was convicted after a trial by jury of petit larceny
and destruction of property,
for which he received concurrent sentences.
Moreover, pursuant to the District of Columbia’s release offender statute, D.C.Code 1973, § 23-1328, appellant received an additional 90-day sentence to be served consecutively to all other sentences. The issues raised on appeal are (1) whether the trial court erred in refusing to impose the sanctions of the Jencks Act, 18 U.S,C. § 3500 (1970), when the government was unable to produce upon request a drawing of the crime scene prepared by an investigating officer; (2) whether D.C.Code 1973, § 23-1328, is unconstitutionally vague; (3) whether the court below erred in imposing the additional 90-day sentence without allowing a trial by jury on the issue of appellant’s release
offender status; and (4) whether appellant was deprived of adequate procedural safeguards at the sentencing proceeding.
Metropolitan Police Department Officer Jacob testified at trial that on September 17, 1974, at 4:45 a. m., he was on routine patrol in the vicinity of 16th Street and Fort Stevens Drive, N.W., when he noticed the shadow of a figure standing behind the raised trunk of a parked car. Arriving at the parked car, the officer noticed that the trunk had been closed, the trunk lock had been forcefully removed; and a tire was lying in the street. On further investigation, appellant was discovered lying underneath the parked car. Another officer arrived on the scene and appellant was arrested and advised of his rights. As he was being searched, appellant volunteered that “[he] didn’t mean it,” and asked the officer to “give [him] a break.” In the course of the search, a screwdriver was seized from appellant’s right rear pocket.
After Officer Jacob completed his direct testimony, defense counsel requested the production of a drawing of the crime scene previously prepared by the witness. The Assistant United States Attorney indicated that the officer had drawn the diagram at her request several days earlier, during a recess in the trial and out of the presence of the jury. The prosecutor indicated to the court that she threw away the diagram after deciding that a larger map would be preferable for jury display. Defense counsel then moved to strike the officer’s testimony, arguing that this was the proper sanction under the Jencks Act. The court denied the motion holding,
inter alia,
that this drawing did not qualify as a formal statement within the purview of the Jencks Act. Appellant was subsequently convicted by the jury of petit larceny and destruction of property.
At the sentencing proceeding, the prosecutor asked that appellant be subjected to an additional term of imprisonment pursuant to D.C.Code 1973, § 23-1328, the so-called release offender statute.
The prosecutor stated:
The government also in this case, Your Honor, will file Repeat [yfc] papers in that Mr. Tansimore was on release in another case as indicated in those papers, and that the government has the Court’s own jacket for indication of the fact that Mr. Tansimore was on release.
Appellant, through counsel, requested a hearing on the matter of his release offender status. Apparently attempting to comply with this request, the court asked appellant whether he had been previously
convicted
of petit larceny. Appellant elected to stand mute instead of responding to the court’s question. Rather than requiring the government to prove that appellant had been on release during the commission of the offenses, the court chose to treat appellant’s silence as an admission of this fact. The court proceeded to sentence him under the release offender statute to an additional prison term of 90 days. This appeal followed.
First, appellant contends that pursuant to the Jencks Act, 18 U.S.C. § 3500 (1970), the trial court erred by refusing to strike
the testimony of Officer Jacob when the government was unable to produce a drawing of the crime scene prepared by the officer. We disagree.
For the Jencks Act to apply and for the right of discovery to exist under the Act, the material sought to be disclosed must constitute a “statement” within the meaning of the Act.
Moore v. United States,
D.C.App., 353 A.2d 16 (No. 8069, Feb. 3, 1976);
In re A.B.H.,
D.C.App., 343 A.2d 573, 575 (1975). In our view, the diagram prepared by Officer Jacob did not constitute a “statement” within the purview of 18 U.S.C. § 3500(e) (1) or (2) and, therefore, no Jencks Act sanction was warranted. The drawing of the crime scene was neither
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; [nor]
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.
Accordingly, the trial court did not err when it held that the drawing was not Jencks Act material.
Appellant next attacks the additional 90-day sentence imposed pursuant to D. C.Code 1973, § 23-1328, contending that the release offender statute is impermissi-bly vague and uncertain. Specifically, appellant contends that the statute is violative of due process since it fails to delimit with precision the term “release.” We disagree.
In
Musser v. Utah,
333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562 (1948), the Supreme Court stated:
Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.
D.C.Code 1973, § 23-1328,
provides that additional penalties shall be assessed when any person is convicted of an offense committed “while released pursuant to section 23-1321.” D.C.Code 1973, § 23-1321,
spe-
cificaJly sets forth the various types of release which may be ordered by a judicial officer. Accordingly, we find that Congress delimited the term “release” in a manner sufficient to provide adequate guidance to both the appellant and the courts.
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FICKLING Associate Judge:
Appellant was convicted after a trial by jury of petit larceny
and destruction of property,
for which he received concurrent sentences.
Moreover, pursuant to the District of Columbia’s release offender statute, D.C.Code 1973, § 23-1328, appellant received an additional 90-day sentence to be served consecutively to all other sentences. The issues raised on appeal are (1) whether the trial court erred in refusing to impose the sanctions of the Jencks Act, 18 U.S,C. § 3500 (1970), when the government was unable to produce upon request a drawing of the crime scene prepared by an investigating officer; (2) whether D.C.Code 1973, § 23-1328, is unconstitutionally vague; (3) whether the court below erred in imposing the additional 90-day sentence without allowing a trial by jury on the issue of appellant’s release
offender status; and (4) whether appellant was deprived of adequate procedural safeguards at the sentencing proceeding.
Metropolitan Police Department Officer Jacob testified at trial that on September 17, 1974, at 4:45 a. m., he was on routine patrol in the vicinity of 16th Street and Fort Stevens Drive, N.W., when he noticed the shadow of a figure standing behind the raised trunk of a parked car. Arriving at the parked car, the officer noticed that the trunk had been closed, the trunk lock had been forcefully removed; and a tire was lying in the street. On further investigation, appellant was discovered lying underneath the parked car. Another officer arrived on the scene and appellant was arrested and advised of his rights. As he was being searched, appellant volunteered that “[he] didn’t mean it,” and asked the officer to “give [him] a break.” In the course of the search, a screwdriver was seized from appellant’s right rear pocket.
After Officer Jacob completed his direct testimony, defense counsel requested the production of a drawing of the crime scene previously prepared by the witness. The Assistant United States Attorney indicated that the officer had drawn the diagram at her request several days earlier, during a recess in the trial and out of the presence of the jury. The prosecutor indicated to the court that she threw away the diagram after deciding that a larger map would be preferable for jury display. Defense counsel then moved to strike the officer’s testimony, arguing that this was the proper sanction under the Jencks Act. The court denied the motion holding,
inter alia,
that this drawing did not qualify as a formal statement within the purview of the Jencks Act. Appellant was subsequently convicted by the jury of petit larceny and destruction of property.
At the sentencing proceeding, the prosecutor asked that appellant be subjected to an additional term of imprisonment pursuant to D.C.Code 1973, § 23-1328, the so-called release offender statute.
The prosecutor stated:
The government also in this case, Your Honor, will file Repeat [yfc] papers in that Mr. Tansimore was on release in another case as indicated in those papers, and that the government has the Court’s own jacket for indication of the fact that Mr. Tansimore was on release.
Appellant, through counsel, requested a hearing on the matter of his release offender status. Apparently attempting to comply with this request, the court asked appellant whether he had been previously
convicted
of petit larceny. Appellant elected to stand mute instead of responding to the court’s question. Rather than requiring the government to prove that appellant had been on release during the commission of the offenses, the court chose to treat appellant’s silence as an admission of this fact. The court proceeded to sentence him under the release offender statute to an additional prison term of 90 days. This appeal followed.
First, appellant contends that pursuant to the Jencks Act, 18 U.S.C. § 3500 (1970), the trial court erred by refusing to strike
the testimony of Officer Jacob when the government was unable to produce a drawing of the crime scene prepared by the officer. We disagree.
For the Jencks Act to apply and for the right of discovery to exist under the Act, the material sought to be disclosed must constitute a “statement” within the meaning of the Act.
Moore v. United States,
D.C.App., 353 A.2d 16 (No. 8069, Feb. 3, 1976);
In re A.B.H.,
D.C.App., 343 A.2d 573, 575 (1975). In our view, the diagram prepared by Officer Jacob did not constitute a “statement” within the purview of 18 U.S.C. § 3500(e) (1) or (2) and, therefore, no Jencks Act sanction was warranted. The drawing of the crime scene was neither
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; [nor]
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.
Accordingly, the trial court did not err when it held that the drawing was not Jencks Act material.
Appellant next attacks the additional 90-day sentence imposed pursuant to D. C.Code 1973, § 23-1328, contending that the release offender statute is impermissi-bly vague and uncertain. Specifically, appellant contends that the statute is violative of due process since it fails to delimit with precision the term “release.” We disagree.
In
Musser v. Utah,
333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562 (1948), the Supreme Court stated:
Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.
D.C.Code 1973, § 23-1328,
provides that additional penalties shall be assessed when any person is convicted of an offense committed “while released pursuant to section 23-1321.” D.C.Code 1973, § 23-1321,
spe-
cificaJly sets forth the various types of release which may be ordered by a judicial officer. Accordingly, we find that Congress delimited the term “release” in a manner sufficient to provide adequate guidance to both the appellant and the courts.
Next, appellant contends D.C.Code 1973, § 23-1328, created a new and separate crime, thereby entitling him to a jury trial on the issue of whether he committed an offense while on release. We disagree.
D.C.Code 1973, § 23-1328, provides in pertinent part:
(a) Any person convicted of an offense committed while released pursuant to section 23-1321 shall be subject to the following penalties in addition to any other applicable penalties:
(1) A term of imprisonment of not less than one year and not more than five years if convicted of committing a felony while so released; and
(2) A term of imprisonment of not less than ninety days and not more than one year if convicted of committing a misdemeanor while so released.
It is clear the the above statute pertains only to the question of punishment rather than creating a new substantive offense. By its very terms, the provisions of § 23-1328 become operational only
after
a trial and
after
the accused has been found guilty. The fact that one was on release during the commission of a crime for which he is convicted merely serves to enlarge the penalty and is, therefore, a sentencing matter within the exclusive jurisdiction of the trial judge. Our position is consistent with the general rule established vis-a-vis the analogous situation of repeat offender statutes.'
The accepted view is that these recidivist statutes do not create separate offenses, but only enhance the punishment on account of the prior conviction.
See Chandler v. Fretag,
348 U.S. 3, 7, 75 S.Ct. 1, 99 L.Ed. 4 (1954);
Graham v. West Virginia,
224 U.S. 616, 623-24, 32 S.Ct. 583, 56 L.Ed. 917 (1912);
Jackson v. United States,
95 U.S.App.D.C. 328, 221 F.2d 883 (1955).
Finally, appellant contends that he was sentenced under D.C.Code 1973, § 23-1328, without first being afforded adequate procedural safeguards. Specifically, the contention is that the sentencing judge erred by failing to require the government to introduce actual proof that appellant was, in fact, on release at the time he committed the offenses for which he was convicted. We agree.
Although no statutory procedure is set forth in D.C.Code
1973,
§ 23-1328, we are convinced that certain procedural safeguards must be afforded before the heavier release offender penalty can be imposed. In discussing the analogous situation involving imposition of increased penalties in the recidivist context, Judge Robinson stated:
We have no doubt that the proceeding is criminal in character, and as much as any other that paves the way to prison. We have no doubt, either, that the accused recidivist, similarly to an accused first offender, must be sheltered by suitable safeguards against an improper sen
tence. (Footnote omitted.)
[United States v. Clemons,
142 U.S.App.D.C. 177, 181, 440 F.2d 205, 209 (1970) (en banc),
cert. denied,
401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 (1971).]
Likewise, due to the potential penalties set forth in D.C.Code 1973, § 23-1328, the accused release offender must be protected by adequate procedural safeguards against the imposition of an improper sentence.
In assessing the adequacy of the procedures employed in the instant case, we are guided by a line of cases in the District of Columbia Circuit which establish certain minimal procedural requirements in the analogous situation concerning repeat offenders.
In
Jackson v. United States, supra,
95 U.S.App.D.C. at 330, 221 F.2d at 885, the late Judge Wilbur K. Miller, in vacating an increased repeat offender sentence, stated:
Jackson should not have been given a sentence of more than one year in the absence of proof to the trial judge, at or before the time of sentence, that he had been previously convicted. . Such proof which so largely shapes the sentence should be introduced in the defendant’s presence, just as the sentence itself must be pronounced in his presence.
Similarly, in
United States v. Clemons, supra
142 U.S.App.D.C. at 181, 440 F.2d at 209, the court stated:
In a decidedly criminal proceeding wherein punishment may be multiplied— here by a factor of ten—nothing so vital as the existence of the conditions authorizing a stepped-up sentence should be left to surmise. And perhaps the procedural standard least dispensable to any just ascertainment of the essential substantive elements of a sentence for illegal pistol-toting is proof adequate to support affirmative judicial determinations on that score. . . . (Footnote omitted.)
Based on the logic and language contained in these cases, we conclude that it was error to sentence appellant under D.C.Code 1973, § 23-1328, in the absence of an admission or proof that he was, in fact, on release during the commission of the offenses for which he was convicted. The government was never required to introduce any proof either of the fact of release or of the identity of appellant as the release offender. The sentencing judge relied instead upon the unsubstantiated allegations by the government on these issues.
Moreover, we conclude that the judge erred in treating appellant’s silence as an admission of his release offender status. Although an accused may competently and intelligently waive the necessity for such proof, we find no such waiver under the facts of this case.
Accordingly, we affirm the judgments appealed from to the extent that they convict appellant of petit larceny and destruction of property and impose concurrent sentences for these substantive offenses. However, we vacate the 90-day sentence imposed pursuant to D.C.Code 1973, § 23-1328, unless on remand the government introduces evidence, with appellant and his counsel present, which satisfies the sentencing judge that, at the time of the commission of the offenses, appellant was on release.
So ordered.