United States v. Symonette

57 F.2d 863, 1932 U.S. App. LEXIS 4086

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 13, 1932
• Docket: Nos. 6479, 6480
• Status: Published

Opinion

FOSTEB, Circuit Judge.

These two cases present an identical question, and may be disposed of in one opinion.

Arthur Symonette pleaded guilty in the Miami Division of the Southern District of Florida to violations of the National Prohibition Act and the Customs Laws, and on April 22, 1931, was sentenced to serve six months in the Palm Beach county jail. On July 24, 1931, ho was brought into court, and his sentence was modified to three months and two days, and he was placed on probation for a period of two years.

Foy Kirkland was convicted of violations of the National Prohibition Act in tho same court and division, and on April .16, 1931, was sentenced to serve six months in the Dade county jail. On July 15, 1931, he was brought into court, and his sentence was suspended for a period of one year, and he was paroled to the probation officer.

There is hut one term of court a year in the Southern District of Florida. The term at Miami begins on the fourth Monday in April and ends with the beginning of ihe succeeding term. Section 76, Judicial Code (28 USCA § 149). In 1931 the fourth Monday of April was the 27th. It is apparent that both the above sentences were imposed in the 1930 term and that after the defendants had been committed to jail and begun to serve them they were amended and the prisoners put on probation in the succeeding term. Tho court was without jurisdiction to thus amend the sentences. U. S. v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309; U. S. v. Cook (C. C. A.) 19 F.(2d) 826.

It follows that the judgments amending the sentences and placing the defendants upon probation must be annulled and set aside. Tn both oases the judgments appealed from are reversed and the cases remanded for further proceedings not inconsistent with this opinion.