In this appeal, we are required to address a trial court’s power to modify a sentence in the course of a sentencing procedure that extended over a five-week period. The upward modification came about when the trial court discovered that appellant would likely receive presentence credit for time spent in a halfway house, thus frustrating the court’s intent, expressed at the initial sentencing hearing, to have appellant actually serve two years’ imprisonment. We hold that, under the facts of the present case, the trial court did not exceed its authority in sentencing appellant nor abridge her double jeopardy rights. 1
I.
After pleading guilty to murder in the second degree for the drowning of her three-year-old son, appellant Michelle Francis was sentenced on February 9, 1996, to a term of ten to thirty years, of which the entirety was suspended save for twenty-four months. The trial court, and apparently all parties as well, thought the twenty-four months would be spent in prison or a prison-like medical
At a brief proceeding on February 20, continued to February 23, the trial court sua sponte raised the issue that in its sentencing decision it had failed to take account of the Department of Corrections’ policy regarding presentence credit, and that depending on how the Department decided to consider Francis’s presentence commitment to a halfway house, she might be eligible for immediate release on probation. This would defeat the court’s stated intent for Francis to serve a sentence of two years’ imprisonment. Given this new concern, the court continued the matter to March 14 to give the parties an opportunity to develop their positions.
At the next proceeding on March 14, the trial court heard argument from both the government and defense counsel. After satisfying itself that Francis would likely receive credit for her presentence time spent at the halfway house, the trial court said that, in order to “effectuate the Court’s true intent,” it had decided “at this point to impose a sentence” of ten to thirty years, followed by five years probation, with all of the incarceration suspended except for forty-five months. Thus, with the presentence credits, Francis would serve two years’ time in prison before beginning probation.
Francis protested to the trial court, as she does to us, that the trial court acted beyond its authority. In response, the trial court recalled that “during the initial sentencing proceeding the Court clearing [sic] and unmistakably contemplated that she [Francis] would serve an additional two years beyond the time she has spent in the halfway house.” Citing several of our cases, 5 the court concluded that its action was not inappropriate where done to “effect the Court’s trae intent.” Given the overall posture of this particular case, we agree with the trial court’s assessment and therefore affirm.
In doing so, we initially take special note of certain salient features of this case. The proceeding on February 9 did bear much of the general formality of an oral pronouncement of sentence,
6
and the unambiguous intention of the trial court and the apparent expectation of all concerned at that time was the imposition of a split sentence of two years’ prison confinement and five years’ probation. These facts are readily discernible from even a cursory inspection of the hearing transcripts. At the outset of the February 9 proceeding, the trial court inquired into whether “there [is] any factual historical matter that requires correction be
If [t]he Court were inclined to impose a strict sentence!,] is federal designation a reasonable option to ensure that your client receives the appropriate lithium treatment, and mental health treatment if she were required to serve some time in a prison as part of a split sentence!?]
The court added,
Well, actually, this Court has pondered even a further question, and that is not simply warehousing, but if [t]he Court were to impose a split sentence where your client had to spend a year or two years or three years in prison, would she decom-pensate, would she then end up in St. Elizabeth’s Hospital, and completely defeat the recovery or performance she has had over the last year and a half!?] I have wrestled with that question also.
Similarly, as a preface to its actual imposition of sentence the court remarked,
This is certainly not an easy case to impose a sentence in, and [t]he Court has pondered ... [t]he appropriate approach to sentencing in this case, and. while [t]he Court is sympathetic towards Ms. Francis and her circumstances!,] in sentencing in all cases [t]he Court must not only look at the defendant, but look at the victim of the case, and the rights and expectations of individuals in the community.
All participants at the February 9 hearing acknowledged that some period of incarceration, in some form, would be imposed. Francis’s counsel himself argued for a period of confinement in a halfway house before allowing his client onto probation:
I think as [t]he Court knows from our letter, we are not suggesting or recommending to [t]he Court that [t]he Court place Ms. Francis on straight probation. That is not the sentence we are asking for. Indeed, the sentence we are asking for is a sentence that is a sentence, a split sentence, within that ... the government also agrees in terms of its recommendations.
He continued, “we are not suggesting merely straight probation. And what we are sug: gesting involves I think very significant restrictions on Ms. Francis’s liberty for a very lengthy period of time. And, that does involve a punitive aspect.”
After commenting on its consideration of multiple factors in arriving at a sentencing determination, the court proceeded as follows:
And, having reflected on all of this [t]he Court has almost reluctantly and with kind of heavy heart reached the decision as follows in this case. Ms. Francis, you may stand at this point. The Court will sentence the defendant to a period of 10 to 30 years. Execution of sentence suspended except for two years. The Court will strongly recommend federal designation with the hope and expectation that she will receive adequate mental care in the federal institution. The Court will preserve on the record the oral motion to modify sentence if federal designation does not appear to be a feasible option within 120 days from now. Period of suspended sentence be followed by a period of five years probation with all of the conditions as recommended by the government 7 ....
The period of probation will be a full five year period probation, and [t]he Court will adopt the prosecution’s standpoint of once she is on probation that periodic compliance hearings will be set. That will be the sentence of [t]he Court in this case.
Possibly reflecting its use of the future tense and the uncertainty as to placement, the court did not on that date sign a written judgment and commitment order.
8
The
It was not until after the imposition of the modified sentence on March 14 that the trial court signed a written judgment and commitment order. Since Francis had sought and obtained a stay of the execution of the February 9 sentence, she did not begin serving any sentence 9 until at least March 14. 10
II.
At common law, the sentencing court had plenary authority to increase a sentence at any point during the judicial term within which it had been imposed.
See United States v. DiFrancesco,
wealth,
The breadth of this rule has been modified in the constitutional era, as the Double Jeopardy Clause has come to impose limits on sentence increases. For double jeopardy purposes, if the defendant has attained a legitimate expectation of finality, a valid sentence cannot be increased once the defendant has begun serving it.
12
See Smith
The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution. ...
Benz, supra,
A.
The trial court’s resentencing decision did not implicate Francis’s double jeopardy rights, as she secured a stay of execution of the sentence and therefore had not begun serving it at the time of resentencing.
See
Green,
supra, 363
A.2d at 981 (“The relevant touchstone in determining whether appellant has commenced serving his sentence is whether he was delivered to executive custody for that purpose.”).
Cf
18 U.S.C. § 3585(a) (1994) (“A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”). Moreover, even under our decision in
Thomas, supra
note 9, the resen-tencing occurred within a reasonably prompt time frame in that the trial court broached the subject eleven calendar days after the original sentence was pronounced.
See
note 12,
supra.
Unlike the scenario spun in
Thomas
of a “convicted individual” being “held indefinitely in the cell block, subject to imposition of a more severe sentence,”
We are not here presented with a situation in which transfer of custody was delayed tofacilitate imposition of a more severe sentence, or in which such delay was occasioned by neglect or indifference. Nor do we have in this case a trial court changing its mind with respect to the first sentence imposed. Rather, we review correction of a sentence never intended.
See
Accordingly, the only issue before us is whether the trial court retained jurisdiction on March 14 in order to accomplish the re-sentencing.
B.
Apart from her double jeopardy argument, Francis urges that we depart from the common law rule authorizing resentencing during the same judicial term. She argues that with the adoption of the Superior Court Criminal Rules the jurisdiction of the trial court to modify a sentence has been dramatically limited. Citing mainly federal cases, Francis claims that the trial court must look to specific statutory sources of authority to justify a decision to resentence and that there is no longer any “inherent power” to do so.
Indeed, the rule currently prevailing in many federal circuits, to the extent one may be distilled, seems to be that the district court possesses no inherent authority to modify a sentence; it may do so “only in specified instances where Congress has expressly granted the court jurisdiction....”
United States v. Blackwell,
It thus appears that the limitation on re-sentencing authority operative in the federal system flows from a federal statute inapplicable in the District of Columbia court system. There is no comparable statute in the D.C.Code. Furthermore, the Superior Court, unlike the federal district courts, is a court of general jurisdiction invested with the full panoply of inherent powers possessed by common law courts.
See
D.C.Code § 11-923 (1995); District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, § 431(a), 87 Stat. 774, 792-93 (1973) (“The judicial power of the District is vested in the District of Columbia Court of Appeals and the Superior Court of the District of Columbia. The Superior Court has jurisdiction of ... any criminal case under any law applicable exclusively to the District.”);
Multi-Family Management, Inc. v. Hancock,
We read our cases generally as recognizing that the trial court possesses an inherent power, restricted only by constitutional considerations, to modify a sentence upward at any time before it has begun to be served, at least where it is clear that there has been a mistake or oversight and that the second sentence is imposed to conform to the clear intent expressed at the original sentencing proceeding.
Many of the early D.C. cases dealing with resentencing asserted broadly that “a sentence in all respects legal cannot be increased after service has begun.”
Borum v. United States,
133 U.S.App. D.C. 147, 154,
The oral utterance [of sentence] is an act of judgment, but it is not an entirely unalterable one. Other events, as for example entry of the order of commitment, are required to give it absolute finality. Until they occur, the court retains jurisdiction and power, within recognized limits which need not be specified here, to make corrections, perhaps even other changes, which may be required by a right administration of justice. Entirely apart from specific constitutional limitations, therefore, there is nothing in the nature of mere oral pronouncement of sentence, judgmental in character though that act may be, which gives it absolutely unalterable quality.
Rowley, supra,
In
Rich, supra
note 5, we upheld a sentence modification where the trial judge, intending to incarcerate the defendant, had inadvertently cited a statutory authority that permitted immediate release.
21
Apart from Superior Court Criminal Rule 36, which allows for the correction of clerical errors, we recognized that “the court’s actions were justified based on its inherent power to correct its record so as to reflect the truth and insure that justice be served.”
Shortly after deciding
Rich,
we revisited the issue of resentencing in
Green, supra,
More recently, in
Gray, supra
note 5, we addressed whether a trial judge, having mistakenly sentenced a defendant orally to five to fifteen
months
incarceration, could later change the sentence to five to fifteen
years
in the written Judgment and Commitment Order. Aside from the fact that the oral sentence was illegal in that it undercut the statutory minimum sentence, and thus correctable at any time under Superior Court Criminal Rule 35, we ruled that the trial judge had the “inherent power” to correct the sentence because it clearly did not conform to his intent. Our decision emphasized the fact that, although the “oral pronouncement of sentence constitutes the judgment of the court, and
Although a sentence of five to fifteen months for an offense with a five year mandatory minimum is superficially unambiguous, its apparent clarity is deceptive. The court is not required to blind its eyes to clear evidence of its own intention. Sentencing is not a game....
Obviously, as the judge subsequently revealed, he did not intend to impose an illegal sentence_ The possibility — in-
deed, the virtual certainty — that the illegal sentence resulted from a slip of the tongue was readily apparent. The sentence from the bench was, therefore, at least ambiguous, for any reasonable person would have concluded that the judge did not mean to say what he said.
Id. (citations and internal quotation marks omitted).
Finally, in
Newton, supra
note 5,
Francis places great reliance on our decision in
Smith v. United States, supra,
Smith focused on the defendant’s legitimate expectation of finality in the order granting his sentence reduction — presumably while he was already serving the sentence at issue — as a way to assure compliance with the Double Jeopardy Clause. For the reasons already discussed, because Francis had obtained a temporary stay of the execution of her sentence, she can claim no double jeopardy violation, much less, given the circumstances of the sentencing proceeding, fairly claim a violation of a legitimate expectation of finality.
D.
Although it may be sometimes difficult to classify our resentencing eases according to whether they were resolved on double jeopardy grounds or on an analysis of the trial court’s authority to act, we are satisfied that in the circumstances here, the trial court had authority to impose its March 14 sentencing. To be sure, the February 9 sentence may not have been in its literal text “superficially ambiguous,”
see Gray, supra
note 5,
Affirmed.
Notes
. Although the government in its brief suggests that this appeal is moot because appellant has already served her two-year term of incarceration and is now released on probation, the outcome of this appeal will still be determinative of the termination date of the five-year probation period.
. Defense counsel sought the stay so that the treatments Francis was receiving at the halfway house would not be interrupted pending her arrival at the CTF.
. In setting forth the conditions of imprisonment, the trial court stated that it "will strongly recommend federal designation with the hope and expectation that she will receive adequate mental care in the federal institution. The Court will preserve on the record the oral motion to modify sentence if federal designation does not appear to be a feasible option within 120 days from now.”
. No hearing would be required if appellant had by that date reported to CTF, which did not occur.
.
See Newton v. United States,
. Were this not the case, there would be no issue on appeal, for if there had been no initial proceeding bearing some hallmarks of formal sentencing, Francis could not complain of any "resentencing.” It is at least arguable, as the government urges before us, that, under a proper analysis of the proceedings here, no final sentence was imposed at all until March 14. Given our analysis of the applicable law, we need not decide this issue.
. At this point, the trial court dealt briefly with one exception involving the infant living child of appellant, who was conceived and born during appellant’s stay at the halfway house.
. The court said: "I think in light of the fact we
. We construe commencement of service to describe the point of "transfer of a convicted individual from the judiciary, which pronounced sentence, to the executive, which administers it.”
Thomas v. United States,
. The record is silent as to exactly when Francis commenced service of the sentence; however, she concedes that it was at some point after the March 14 resentencing. At that proceeding, the trial court remarked that "in this case the Defendant has not even stepped back to begin sentencing yet. ...”
. The Court of Appeals of Maryland observed, "It is well established and has been the law in this state, from the earliest days, that a court retains power over its own judgments and orders in both civil and criminal cases during the term at which they are entered or made.”
Czaplinski, supra,
. The precise contours of the double jeopardy limitation on resentencing can be difficult to define, as illustrated by two cases. In
DiFrances-co,
the Supreme Court expressly declined to address whether the Double Jeopardy Clause actu
On the other hand, in
Thomas v. United States, supra
note 9,
In a technical sense, the Double Jeopardy Clause is inapplicable absent a transfer of a convicted individual from the judiciary, which pronounced sentence, to the executive, which administers it. Both Rowley and Green make clear, however, that the Double Jeopardy Clause is violated, even absent such a transfer of custody, when resentencing does not occur in a reasonably prompt manner.
(Citations omitted.)
The ambiguity in the law, highlighted by these cases, does not affect our resolution of Francis’s double jeopardy challenge, as the resentencing here took place before Francis commenced service of her sentence and, in any event, was reasonably prompt under the circumstances. See Part IÍ.A., infra.
. The portion of this quoted language imposing a broad double jeopardy limitation on sentence increases after service of the sentence has begun was later questioned by the Supreme Court in
DiFrancesco, supra,
.Appellant especially cites us to
United States v. Addonizio,
. This assertion does seem to stand in some contrast to earlier federal decisions holding that a case remained in the "breast of the court” until the end of the judicial term,
see, e.g., Goddard, supra,
. Section 3582(c) was enacted as part of the Sentencing Reform Act of 1984. The subsection does contain a general provision that "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Several federal circuit courts have held that this section does not preclude the application of Federal Rule 36, which allows correction of clerical errors at any time.
See, e.g., Blackwell, supra,
. Rule 35 provides in pertinent part:
(a) Correction of sentence. The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. A motion to reduce a sentence may be made not later than 120 days after the sentence is imposed or probation is revoked, or not later than 120 days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or not later than 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The Court shall determine the motion within a reasonable time. After notice to the parties and an opportunity to be heard, the Court may reduce a sentence without motion, not later than 120 days after the sentence is imposed or probation is revoked, or not later than 120 days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or not later than 120 days after entry of any order or judgment of the Supreme Court, denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. ...
. Rule 36 provides as follows:
Clerical mistakes and errors in judgments, orders, or other parts of the record not including the transcript which arise from oversight or omission may be corrected by the Court at any time and after such notice, if any, as the Court orders. No changes in any transcript may be made by the Court except on notice to the prosecutor and counsel for the defendant. Where changes are made in the transcription of proceedings, the corrections and deletions shall be shown.
. Unlike Superior Court Criminal Rule 35, its federal counterpart allows that "[t]he court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error.”
See
Fed.R.Crim.P. 35(c). The purpose of this provision, added to the federal criminal rules in 1991, was to codify the result in such cases as
United States v. Cook,
. Superior Court Criminal Rule 35 does not address increases of valid sentences and should not be read to preempt or foreclose all judicial
. The judge made the sua sponte correction on the same day the initial sentence was imposed.
. We have said that the rule ‘‘[gliving primacy to the oral sentence over a subsequent written one is designed to prevent a vindictive judge from changing his mind in a manner adverse to the defendant.”
Gray, supra
note 5,