139 F.2d 226 | 5th Cir. | 1943
Claud Nivens was tried and convicted on four counts of an indictment charging him with passing counterfeit money and conspiring to commit such offense. It was the sentence of the court that he be imprisoned in the penitentiary at Leavenworth, Kansas, “for a term and period of seven years each, on the first, second, and third counts in the indictment, and two years on the fourth count of the indictment, twenty-three years in all, not to run concurrently, sentence to begin October 14, 1936.” The commitment followed the language of the sentence.
In 1943 appellant filed a motion to correct the sentence, claiming that it was uncertain and indefinite because it did not expressly state that the respective terms were to run consecutively; that such ambiguity should be resolved in his favor; and that the judgment should be corrected to make each of the sentences begin to run on October 14, 1936. The court below dismissed the motion on the grounds that it was filed too late and was without merit.
It is true that the expiration of the term does not deprive the court of its power to correct its records to conform to the truth,
The final question is whether the court erred in refusing to provide appellant with counsel for the presentation of his motion. The Sixth Amendment guarantees that, in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense, and the Fifth Amendment guarantees due process upon trials for crimes against the United States. If an accused is not represented by counsel upon his trial, and has not competently and intelligently waived his constitutional right, it has been held that no valid conviction and sentence may result.
At common law there was no review of criminal cases as a matter of right, and due process does not require the right of appeal.
Affirmed.
Buie v. United States, 5 Cir., 127 F.2d 367, and cases there cited.
Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.
Nivens v. Hudspeth, 10 Cir., 105 F.2d 756, certiorari denied 317 U.S. 628, 63 S.Ct. 42.
McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843.
Cf. Moore v. Aderhold, 10 Cir., 108 F.2d 729; Errington v. Hudspeth, 10 Cir., 110 F.2d 384, 127 A.L.R. 1467, certiorari denied 310 U.S. 638, 60 S.Ct. 1087, 84 L.Ed. 1407.