1. One upon whom sentence in a criminal case has been suspended
may at any time request the court to pronounce judgment, and in the
absence of such request must be deemed to have consented to the
indefinite delay. P.
288 U. S.
210.
2. In a criminal case in the federal district court, an order
for a permanent suspension of sentence is void.
Ex parte United
States, 242 U. S. 27. P.
288 U. S.
209.
3. Final judgment in a criminal case means sentence, and a void
order purporting permanently to suspend sentence is neither a final
nor a valid judgment. P.
288 U. S.
210.
Page 288 U. S. 207
4. Where judgment has not been pronounced upon a verdict during
the term at which it was rendered, the cause continues on the
docket and necessarily passes over to a succeeding term for final
judgment or other appropriate action. P.
288 U. S.
211.
5. Where the district court, in a criminal case in which a
verdict has been duly returned, orders sentence suspended, it is
not without jurisdiction thereafter, either at the same or a
subsequent term, to impose sentence, even though the intent of the
order of suspension was to suspend sentence permanently. P.
288 U. S.
211.
56 F.2d 152 affirmed.
Certiorari, 287 U.S. 592, to review a judgment affirming a
judgment dismissing a writ of habeas corpus.
Page 288 U. S. 209
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
December 10, 1930, in the federal District Court for the
Southern District of New York, petitioner was convicted on his plea
of guilty of the crime of stealing from the United States mails. By
order of the court, sentence was suspended, and he was discharged
from the custody of the marshal.
At a subsequent term of court, on June 17, 1931, petitioner was
sentenced by another judge to four years' imprisonment. A motion to
vacate the sentence was denied, and a petition for a writ of habeas
corpus was filed in the federal District Court for the Northern
District of Georgia praying the discharge of petitioner on the
ground that the court imposing the sentence was without
jurisdiction to do so. After a hearing, the writ was dismissed and
petitioner remanded to custody. The Circuit Court of Appeals
affirmed the judgment. 56 F.2d 152.
Petitioner seeks a reversal here on the ground that the order of
December 10 constitutes a permanent suspension of sentence, void
under the decision of this Court in
Ex parte United
States, 242 U. S. 27, and
that, with the expiration of the term, the trial court was without
power to sentence petitioner. The Solicitor General vigorously
opposes the contention that the effect of the order was
Page 288 U. S. 210
to suspend sentence permanently, but, without determining that
question, we are of opinion that, if such was the effect,
nevertheless, the court was not deprived of power to impose
sentence at a subsequent term.
The decisions on the point are in conflict. The greater number
support the view of petitioner, but we are of opinion that the
weight of reason is the other way. Several of the cases holding
with petitioner are set forth in
Mintie v. Biddle, 15 F.2d
931, 933. While these cases and others are emphatically to the
effect that a permanent suspension of sentence is void, and that
the court thereby, with the passing of the term, loses
jurisdiction, we find no convincing reason in any of them for the
latter conclusion. The decision in the
Mintie case rests
primarily upon considerations affecting the accused. Support for
its conclusion is found by the court in the supposition that,
during the suspension, the accused can
"make no plans, enter into no contracts, engage in no permanent
occupation, and bind himself to no obligations or create any
permanent ties, business or domestic."
But it is hard to see the relevancy of these difficulties to the
question of jurisdiction. They equally would be present if sentence
were definitely postponed from term to term, and power to that
extent is not doubted. Moreover, since the suspension order is
void, the accused is not bound to rest under the supposed hardship.
He may at any time put an end to it by requesting the court to
pronounce judgment, which the court no doubt would do unless good
cause to the contrary were made to appear. In the absence of such
request, he must be held to have consented to the indefinite delay,
and cannot complain.
Hoggett v. State, 101 Miss. 269, 271,
57 So. 811.
Compare United States v. Mulligan, 48 F.2d 93;
United States v. Lecato, 29 F.2d 694, 695.
In a criminal case, final judgment means sentence, and a void
order purporting permanently to suspend sentence
Page 288 U. S. 211
is neither a final nor a valid judgment.
United States v.
Lecato, supra, at p. 695;
State v. Bongiorno, 96
N.J.Law, 318, 115 A. 665;
People v. Bork, 78 N.Y. 346,
350;
State v. Vaughan, 71 Conn. 457, 458, 42 A. 640;
Symington v. State, 133 Md. 452, 454, 105 A. 541. If the
suspension be for a fixed time, the case undoubtedly remains on the
docket of the court until disposed of by final judgment. There is
no good reason, in our opinion, why a different rule should obtain
where the order of suspension, though expressly made permanent, is
void. Such an order is a mere nullity, without force or effect, as
though no order at all had been made, and the case necessarily
remains pending until lawfully disposed of by sentence.
Compare
In re Bonner, 151 U. S. 242,
151 U. S.
259-262;
G. Amsinck & Co. v. Springfield Grocer
Co., 7 F.2d 855, 858;
Hammers v. United States, 279
F. 265, 266;
Biddle v. Thiele, 11 F.2d 235, 236-237;
Bryant v. United States, 214 F. 51.
The order here under review being ineffectual to confer immunity
from punishment, the conclusion that such immunity existed must
rest upon the bare fact that, without any saving provision, the
term at which the accused was convicted but not sentenced had
passed. But that foundation for the conclusion at once vanishes in
the face of the rule that, where judgment has not been pronounced
upon a verdict during the term at which it was rendered, the cause
continues on the docket, and necessarily passes over to a
succeeding term for final judgment or other appropriate action.
Walker v. Moser, 117 F. 230, 232. We conclude, in
accordance with what we regard as the better view, that, in a
criminal case where verdict has been duly returned, the
jurisdiction of the trial court, under circumstances such as are
here disclosed, is not exhausted until sentence is pronounced,
either at the same or a succeeding term.
Rachmil v. United
States, 288 F. 782, 785;
Ex parte Dunn, 50 S.D. 48,
52-54, 208
Page 288 U. S. 212
N.W. 224;
Hoggett v. State, supra at p. 271 of 101
Miss., 57 So. 811;
Hancock v. Rogers, 140 Ga. 688, 79 S.E.
558;
Dilley v. Commonwealth, 243 Ky. 464, 468, 48 S.W.2d
1070;
Neace v. Commonwealth, 165 Ky. 739, 742-743, 178
S.W. 1062.
Judgment affirmed.