523 F.2d 858 | 8th Cir. | 1975
Lead Opinion
Petitioner Daniel Lee Sappington appeals from the denial by the United States District Court for the Eastern District of Missouri of his motion to vacate his sentence under 28 U.S.C. § 2255. On May 23, 1969, petitioner pleaded guilty to entering a federally insured savings and loan association with the intent to commit larceny, in • Nation of 18 U.S.C. § 2113(a). He was sentenced to consecutive terms of five years imprisonment on an unrelated charge and fifteen years on the charge here involved. No appeal was taken from the judgment of conviction. Nearly one year later, on April 23, 1970, he was convicted in a Missouri state proceeding of second degree burglary and sentenced to a term of six years. Missouri officials immediately thereafter paroled Sappington to the federal authorities.
On September 11, 1974, Sappington filed the instant § 2255 petition claiming: (1) that the federal trial court failed to adhere to Fed.R.Crim.P. 11 in accepting his plea of guilty; and (2) that his federal sentence of fifteen years was illegal because of the subsequent state prosecution for the same offense. The district court dismissed the petition without a hearing. We affirm.
Petitioner’s initial contention with respect to his plea is that he did not in fact plead guilty to the charge of entering a federally insured savings and loan association with the intent to commit larceny. The record of the hearing on May 23, 1969, clearly refutes this allegation:
THE COURT: Let’s take them one at a time. Let’s take 69 Cr 21, which is a charge of entering the Farm and Home Savings and Loan Association with intent to commit larceny.
MR. GILSTER [Sappington’s attorney]: All right, sir.
THE COURT: Do I understand, Mr. Sappington, you want to enter a plea of guilty to the charge?
DEFENDANT SAPPINGTON: Yes, sir.
We turn to the allegation that the trial judge, in accepting the plea, failed to comply with Fed.R.Crim.P. II.
We have noted that Rule 11 does not require “that the court follow an exact ritual, or that, in order to convey an understanding of the ‘nature of the charge’ to the defendant, it is necessary to explain the ‘elements’ of the offense.” Sappington v. United States, 468 F.2d 1378, 1380 (8th Cir. 1972), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). The proper scope of the examination of the defendant “will in each case depend upon the complexity of the charge as well as all of the surrounding circumstances . . . ” Id. at 1379. The record in this case demonstrates substantial compliance with the rule.
Petitioner claims that he was denied his constitutional rights because he was prosecuted by both federal and state authorities for the same offense. Although Sappington’s arguments are inartfully drafted and somewhat confusing, we construe them broadly because he is proceeding pro se. We discern two contentions: first, that the two prosecutions were violative of the protection against double jeopardy; and second, that the federal authorities denied him equal protection of the law by violating their self-imposed policy against duplicative federal-state prosecutions.
As to the double jeopardy claim, it is well established that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922); accord, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). A state prosecution which follows a federal prosecution for the same offense is not violative of the double jeopardy clause. Bartkus v. Illinois, 359 U.S. 121, 128-129, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).
Petitioner’s claim that he was denied equal protection because the Justice Department violated its self-imposed policy against duplicative federal-state prosecutions is frivolous. Petitioner was convicted in state court nearly one year after his conviction in federal court. Thus the federal authorities were in no position to invoke their policy of avoiding duplication. When petitioner was prosecuted and convicted in state court, the state authorities were not bound by the policy of the Justice Department.
Petitioner’s claims are without merit and his § 2255 motion was properly dismissed by the district court. The judgment of the district court is affirmed.
. Rule 11 provides in relevant part that a court shall not accept a guilty plea “without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea” and that “[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” Fed.R.Crim.P. 11.
. See Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).
Concurrence Opinion
(concurring).
I concur in all that has been said in the majority opinion, and were this a direct criminal appeal, I would join without reservation. In my view, however, it is unnecessary for this court to consider on a 28 U.S.C. § 2255 motion whether there has been full compliance with Rule 11 of the Federal Rules of Criminal Procedure. “[C]ollateral relief is not available when all that is shown is a failure to comply with the formal requirements” of a rule of criminal procedure. Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962). As pointed out in Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974), the test under § 2255 is “whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of jus
There are many constitutional rights which may be waived by a voluntary and understanding plea of guilty. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); United States v. Frontero, 452 F.2d 406, 414 (5th Cir. 1971). Recently enacted amendments to Rule 11 (Public Law 94-64, 89 Stat. 370, 371), effective December 1, 1975, incorporate an extensive litany of rights which must be explained to the defendant by the court at the time of a plea of guilty or nolo contendere.
. Rule 11(c), as amended, reads:
(c) Advice to Defendant. — Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and
(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(4) that if he pleads guilty or nolo contendere there will not be a further tri^l of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
(5) that if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement.
