This appeal questions the legality and effect of an indeterminate sentence of 2j/2 to 7 years' imposed upon defendant-appellant by the District Court in Criminal Case No. 73337, which provides “said sentence to take effect at the expiration of sentence imposed in Criminal Case No. 73336.” Defendant contеnds that this sentence is not sufficiently definite and certain to be valid as a cumulative sentence, that there was an invalid suspension of execution of the sentence because the prior sentence in Case No. 73336 had been stayed by an appeal, and that, being invalid as a cumulative sentence, the later sentencé should be construed to run from date of pronouncement.
During July of 1944 defendant was convicted of the crime of rape in District Court Case No. 73336. A sеntence of 5 to 15 years was imposed, and defendant ordered committed to the custody of the Attorney General. He filed an appeal from this judgment аnd elected not to commence service of the sentence. The conviction was affirmed on February 26, 1945. Holloway v. United States,
During October of 1944, while the appeal in Case No. 73336 was pending, defendant was convicted in District Court Case No. 73337 of the crime of assault with intent to rape another victim. On Octobеr 27, 1944 the impugned sentence was imposed in this case.
In April of 1949 defendant filed a motion to correct the later sentence, in which his main complaint was thаt there was an indefinite suspension of the execution thereof. This motion was heard on December 2, 1949. Defendant was present, represented by an attorney, and the District Judge denied the motion, without comment. This appeal is from the denial of that motion.
There is no question of either sentence being in excеss of the minimum and maxi
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mum terms which the court could have imposed for the respective offenses under D.C.Code (1940 Ed.) 22-2801 and 22-501, nor is any question raised as to the right of the cоurt to impose cumulative indeterminate sentences. This court has sanctioned such sentences in Brosius v. Botkin, 1940,
For a quarter of a century United States courts have had for their guidance in imposing and interpreting sеntences the rule stated thus in United States v. Daugherty, 1926,
“Sentences in criminal cases 'should reveal with fair certainty the intent of the court and exclude any serious misаpprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded.”
Judged by this standard, the sentence in question is sufficiеntly definite to reveal with fair certainty the intent of the court to impose a sentence consecutive to another sentence which was sufficiently idеntified. In Watson v. United States, supra, a third sentence, later vacated, reading, “said sentence to take effect at expiration of sentence nоw being served”, was- held by this court to be sufficiently definite and certain to provide a standard for measuring the terms of fourth and fifth sentences which were made concurrent therewith. The sentence in question is legally definite and certain within the rule approved by the federal courts.
When a later sentence is made сonsecutive to an earlier indeterminate sentence, the execution of the later sentence is always suspended, and such a suspension is not invаlid. Although at the time of imposing
the later
sentence, as in this case, no one could name the exact date on which execution of the later sentence would commence, in effect a definite standard was established by which the beginning and end of the later sentence can be measured, thus removing it from the realm оf either permanent suspension or dependency upon purely fortuitous events, such as was true in the two cases cited by defendant. Ex Parte United States, 1916,
Having decided that the sentence in question is sufficiently definite and certain to be valid as a cumulative sentence and that there was not an invalid suspension of execution thereof, it is unnecessary to express an opinion on defendant’s third pоint that; being invalid as a cumulative sentence, it should be construed to run from date of pronouncement.
*507 Because we are deciding this appeal on the merits, we think it proper to dispose of a procedural objection raised by the Government in oral argument before this court, namely, that defendаnt’s motion was premature because filed prior to expiration of the minimum time on his first sentence. In denying rather than dismissing defendant’s motion, the trial judge apparently determined the motion upon its merits. The minimum time of the first sentence has now expired. It would be unfortunate to disregard the realities of the situation and dismiss this motion as having been prematurely filed, relegating the defendant to refiling an identical motion in the District Court. Although 28 U.S.C.A. § 2255, which became effective September 1, 1948, providеs that a prisoner in custody under sentence 1 of a United States court may file a motion attacking the sentence, 1 it also provides: “A motion for such relief may be made at any time.” Rule 35 of the Rules of Criminal Procedure 2 provides, “The court may correct an illegal sentence at any time.” If the trial court may correct an illegal sentence at any time, certainly a defendant has a right to move the court at any time for a declaration that a sentence is illegal. We do not believe that in employing the phrase, “a prisoner in custody under sentence,” Congress intended to limit thе courts’ authority for correcting illegal sentences, as provided in this 1946 rule, to those cases where defendants have actually started serving the sentenсes. We believe the intent of both the statute and the rule is to permit the filing of a motion to correct an allegedly illegal sentence at any time regаrdless of whether or not execution of the sentence has commenced.
The order of the District Court denying the motion to correct the sentence is accordingly
Affirmed.
Notes
. Italics added.
. Although these rules were not in effect when these sentences were imposed, they are applicable to the instant proceеding under Rule 59, which provides the effective date of the rules is March 21, 1946, and, “They govern all criminal proceedings thereafter commenced and so far as * * * practicable all proceedings then pending.”