1. The sentence in a criminal case is the final judgment. P.
302 U. S.
212.
2. A sentence remains the final judgment, and is appealable
notwithstanding a suspension of execution. P.
302 U. S.
212.
In criminal cases, as well as civil, the judgment is final for
the purpose of appeal when it terminate the litigation on the
merits and leaves nothing to be done but to enforce by execution
what has been determined.
3. The finality of a sentence and the right to appeal from it
are not affected by placing the convict on probation. P.
302 U. S.
213.
4. During the pendency of an appeal from a sentence, the
District Court is without jurisdiction to modify its judgment by
resentencing the prisoner. P.
302 U. S. 214.
88 F.2d 645 reversed.
Certiorari, 301 U.S. 675, to review a judgment dismissing an
appeal from a criminal sentence and affirming a later one imposed
after the appeal was taken.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
On conviction upon an indictment containing several counts for
using the mails to defraud (18 U.S.C. § 338) and for conspiracy to
that end (18 U.S.C. § 88), petitioner was sentenced on each count
to serve a year and a day,
Page 302 U. S. 212
the terms of imprisonment to run concurrently. Execution of the
sentence was suspended, and petitioner was placed on probation for
two years. Petitioner appealed from the sentence.
While the appeal was pending and without its withdrawal,
petitioner, fearing its dismissal, applied to the District Court
for resentence. That court reimposed the prior sentence of
imprisonment, again suspending its execution, and added a fine of
$1 upon each count. The court did not vacate the prior sentence.
Petitioner then appealed from the second sentence.
The Circuit Court of Appeals held that, by reason of suspension
of its execution, the first sentence was interlocutory, and
dismissed the first appeal. Assuming that appeal to be a nullity,
the Court of Appeals thought that the District Court had power to
resentence; that petitioner could not complain of the fine, as it
was imposed at his request, and that the second sentence of
imprisonment, if taken alone, was interlocutory. The judgment
imposing the fine was affirmed, and the appeal from the second
sentence of imprisonment was dismissed. 88 F.2d 645.
We are of the opinion that the Court of Appeals erred in
dismissing the first appeal as interlocutory. Petitioner was
convicted and sentenced. Final judgment in a criminal case means
sentence. The sentence is the judgment.
Miller v.
Aderhold, 288 U. S. 206,
288 U. S. 210;
Hill v. Wampler, 298 U. S. 460,
298 U. S. 464.
Here, the imposition of the sentence was not suspended, but only
its execution. The sentence was not vacated. It stood as a final
determination of the merits of the criminal charge. To create
finality, it was necessary that petitioner's conviction should be
followed by sentence (
Hill v. Wampler, supra), but, when
so followed, the finality of the judgment was not lost, because
execution was suspended. In criminal cases, as well as civil, the
judgment is final for the purpose of appeal
Page 302 U. S. 213
"when it terminates the litigation between the parties on the
merits" and "leaves nothing to be done but to enforce by execution
what has been determined."
St. Louis, Iron Mountain & S. R.
Co. v. Southern Express Co., 108 U. S. 24,
108 U. S. 28;
United States v. Pile, 130 U. S. 280,
130 U. S. 283;
Heike v. United States, 217 U. S. 423,
217 U. S.
429.
Petitioner stands a convicted felon, and, unless the judgment
against him is vacated or reversed, he is subject to all the
disabilities flowing from such a judgment. The record discloses
that petitioner is a lawyer, and, by reason of his conviction, his
license was subject to revocation (and petitioner says that he has
been disbarred) without inquiry into his guilt or innocence.
Matter of Ackerson, 218 App.Div. 388, 392, 218 N.Y.S. 654.
His civil rights may be determined solely by reference to the
judgment.
Placing petitioner upon probation did not affect the finality of
the judgment. Probation is concerned with rehabilitation, not with
the determination of guilt. It does not secure reconsideration of
issues that have been determined, or change the judgment that has
been rendered. Probation or suspension of sentence "comes as an act
of grace to one convicted of a crime."
Escoe v. Zerbst,
295 U. S. 490,
295 U. S.
492-493. The considerations it involves are entirely
apart from any reexamination of the merits of the litigation.
Probation was designed "to aid the rehabilitation of a penitent
offender;" "to take advantage of an opportunity for reformation
which actual service of the suspended sentence might make less
probable." Thus, probation cannot be demanded as a right. "The
defendant stands convicted; he faces punishment, and cannot insist
on terms or strike a bargain."
Burns v. United States,
287 U. S. 216,
287 U. S. 220.
But, if final judgment determining his guilt has been rendered, he
still has the opportunity to seek by appeal a reversal of that
judgment, and thus to secure not an opportunity to reform, but
vindication.
Page 302 U. S. 214
As the first sentence was a final judgment, and appeal therefrom
was properly taken, the District Court was without jurisdiction
during the pendency of that appeal to modify its judgment by
resentencing the prisoner.
Draper v. Davis, 102 U.
S. 370,
102 U. S. 371;
Keyser v. Farr, 105 U. S. 265,
105 U. S. 266;
Spirou v. United States, 24 F.2d 796, 797;
United
States v. Radice, 40 F.2d 445, 446;
United States v.
Habib, 72 F.2d 271.
The judgment of the Circuit Court of Appeals is reversed so far
as it dismissed the first appeal and affirmed the later judgment
imposing the fine, and the cause is remanded to that court for
further proceedings in conformity with this opinion.
Reversed.