UNITED STATES of America, Plaintiff-Appellee, v. Sherman Lee RICE, Defendant-Appellant.
No. 81-7250.
United States Court of Appeals, Eleventh Circuit.
March 26, 1982.
IV. The Selection of the Jury
Appellants’ final argument is that the trial court‘s procedure for selecting the jury denied them their due process right to a fair trial. The trial court allowed defendants ten peremptory challenges which they could exercise as a group or apportion by agreement. The court explained that the prosecution would exercise its challenges first, then tender the jury to the defendants who would exercise their challenges and tender the jury back to the government. This process of challenge-and-tender would continue until each side was satisfied with the jury or had exhausted its challenges. The defendants, citing the Fifth Circuit‘s statement in Gafford v. Star Fish & Oyster Co., 475 F.2d 767 (5th Cir. 1973) that simultaneous or alternating exercise of challenges would be “better practice,” contend that the trial court should have required alternating or simultaneous challenges, and that the procedure used denied them a fair trial.
This argument is without merit. The trial court has wide discretion in supervising the selection of jurors and regulating the exercise of peremptory challenges. See United States v. Franklin, 471 F.2d 1299, 1300 (5th Cir. 1973); United States v. Williams, 447 F.2d 894, 896-97 (5th Cir. 1971).
We find no basis for appellants’ claims of prejudice. Counsel were informed7 prior to the beginning of voir dire of the procedure to be used and voiced no objection. This case, therefore, is totally unlike United States v. Sams, 470 F.2d 751 (5th Cir. 1972) in which the Fifth Circuit held that where the court had failed to explain the challenge procedures and defense counsel‘s misunderstanding of the procedure resulted in his being allowed to exercise only two challenges, reversible error had occurred. Here the record not only showed that defense counsel were permitted to fully exercise their challenges, but that the defense accepted the jury with one challenge unused. While we agree with the Star Fish court that simultaneous or alternating challenges would be “better practice,” under the circumstances we conclude that no error occurred. Accordingly, the convictions are AFFIRMED.
G. Douglas Jones, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
Before TJOFLAT, HILL and ANDERSON, Circuit Judges.
Sherman Lee Rice appeals the revocation of his probation and the reinstatement of his original sentence of incarceration. We affirm the revocation of probation. Finding that the district court premised its reinstatement of sentence on a misapprehension of law, we remand for resentencing.
I.
On April 13, 1978, Sherman Lee Rice (appellant) pleaded guilty to unlawful possession of a United States Treasury check stolen from the mail in violation of
On February 4, 1981, Rice‘s probation officer filed a petition for revocation of probation (the petition), alleging eight violations of the stated condition during the preceding twenty-nine months.1 On March 10, 1981, the district judge who had sentenced Rice conducted a revocation hearing. The court found that appellant had violated his probation as alleged and revoked probation for that reason.2
Turning to the matter of sentencing, the court commented that it had received a notation that Rice had been charged with rape in a warrant issued on December 11, 1980. The facts underlying the charge were not presented, and Rice made no statement for fear of self-incrimination. The court entertained argument in mitigation of sentence and then stated,
I have got no alternative but to reimpose the original three year custodial sentence that was imposed.
And I must say parenthetically that a large part of my imposing the three year custodial sentence has to do with the pending rape charges.
It is, therefore, I think appropriate for you, within a hundred and twenty days, to file a motion under
Rule 35 to reduce the sentence. And if in that motion you can show that he has been acquitted of those charges, or if you can show that they have not been tried, I can then at least hold that motion in abeyance and see what happens in the state court with regard to those charges before I act on a motion to reduce the sentence....If he is acquitted of those charges, then I may very well reduce the three year custodial sentence that I originally imposed.
(Record, vol. II at 88-89).
Appellant assigns four errors to the district court‘s revocation of probation, all of which we find without merit. First, Rice contends that the hearing violated his fifth amendment right to due process because the court based its decision in part on the rape charge, a probation violation of which Rice had no notice because it was not listed in the petition. We need not address the constitutional question because the court did not consider the rape charge in revoking probation. See note 2, supra.
Second, Rice contends that the hearing was fundamentally unfair in violation of fifth amendment due process because the probation officer unreasonably delayed filing his petition, which listed violations dating back nearly two and a half years.3 We reject the proposition that a probation revocation hearing is constitutionally defective when the petition alleges a series of violations committed during a period of several years. As the district court noted, this was a “building block case.” (Record, vol. II at 80). It appears from the record that Rice‘s probation officer sought patiently and tolerantly to help rehabilitate him and succumbed only in the face of Rice‘s continuing inability to comply with the conditions of his probation. We decline to hold such treatment fundamentally unfair. Implicit in Rice‘s position is that a probation officer must petition for revocation upon the first violation of probation, a practice we are loath to encourage. While due process may in some circumstances limit the district court‘s discretion to revoke probation based on stale violations, see, e.g., United States v. Tyler, 605 F.2d 851 (5th Cir. 1979), we hold that a revocation of probation based on a series of violations punctuating the probationary period is, without more, constitutional.
Rice next contends that the district court erred by basing the revocation in part on misdemeanor convictions obtained when he was not represented by counsel. The record indicates that Rice may have been unrepresented when he pleaded guilty to the August 19, 1980, and the November 3, 1980, traffic offenses, and we so assume. However, Rice testified to the facts underlying both convictions at the revocation hearing. He testified that on August 19, 1980, he ran a red light while driving without a valid license, and that on November 3, 1980, he was driving his aunt to the hospital, again without a valid license, and ran from the police when they stopped him for reckless driving.
In a probation revocation proceeding, all that is required is that the evidence reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation; evidence that would establish guilt beyond a reasonable doubt is not required. United States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). We therefore need not decide whether Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (uncounselled misdemeanor conviction cannot be used to increase punishment for later offense under enhanced punishment statute), prohibits the use of an uncounselled misdemeanor conviction to establish a probation violation. Ample evidence apart from the convictions themselves was presented to establish the August 19, 1980, and November 3, 1980, probation violations. Cf. United States v. Marron, 564 F.2d 867, 871 (9th Cir. 1977).
Finally, Rice contends that the district court abused its discretion by revoking his probation. Among Rice‘s assertions in support of this contention are two that we have already rejected: that the district court considered uncounselled misdemeanor convictions and that the petition alleged stale violations. Rice further argues that most of his violations were minor traffic offenses, that mitigating circumstances attended some of the offenses, and that he is a suitable candidate for rehabilitation without incarceration. These considerations were before the district court, which found them unpersuasive. Probation revocation is entrusted to the sound discretion of the
III.
The record shows that the district court premised its decision to reinstate the three year term of incarceration in significant part on its belief that it could entertain a subsequent motion to reduce sentence pursuant to
The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 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. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
The statutory 120-day period within which a court may reduce sentence is jurisdictional, and a court is without power to reduce a valid sentence pursuant to the statute after that time. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979).5 The district court‘s jurisdiction to entertain a Rule 35(b) motion subsequent to Rice‘s 1981 revocation hearing therefore turns on whether the court‘s action on that occasion constituted an imposition of sentence for purposes of
When, as here, the district court imposes sentence at trial, suspends execution of the sentence and places the defendant on probation,7 there are two plausible characterizations of what happens when probation is later revoked. One view is that since the revoking court has available a range of sentencing options8 and evaluates the usual sentencing factors and exercises discretion in selecting an appropriate sentence, its action amounts to an imposition of sentence. See United States v. Colvin, 644 F.2d 703 (8th Cir. 1981). The second characterization is that sentence is imposed only attendant
Three Courts of Appeals have decided whether a district court that revokes probation more than 120 days after the original imposition, and suspension, of sentence has jurisdiction of a subsequent Rule 35(b) motion. Colvin, supra; United States v. Johnson, 634 F.2d 94 (3d Cir. 1980); Kahane, supra. In Kahane, the Second Circuit held, with little elaboration, that it does not. In Colvin and Johnson, the Eighth and Third Circuits concluded that the language of the rule was susceptible of either of the stated characterizations, 644 F.2d at 707; 634 F.2d at 97, and held that policy considerations and the purposes of Rule 35(b) indicated the opposite result. We conclude that the language of the rule, as explained by the Advisory Committee on Rules, establishes that the district court at a revocation hearing like Rice‘s9 does not impose sentence for purposes of
The language of the rule which we find conclusive is:
The court may also reduce a sentence upon revocation of probation as provided by law.
The third sentence has been added to make it clear that the time limitation imposed by
Rule 35 upon the reduction of a sentence does not apply to such reduction upon the revocation of probation as authorized by18 U.S.C. § 3653 .
The statute alluded to in the rule and identified in the Notes provides in relevant part:
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.
The language of Rule 35(b) unambiguously discloses that when a court revokes probation and requires the offender to serve a sentence less than that originally imposed, the court is not imposing sentence, but rather is reducing sentence. It follows that when the revoking court requires the offender to serve the original sentence, it is not imposing sentence, but rather is reinstating sentence. The rule and the Advisory Committee Notes similarly disclose that for purposes of the rule,
The quoted language of
Policy and practical considerations buttress our holding, and we reject the policy analyses of the Third and Eighth Circuits. In Johnson, supra, the Third Circuit offered two principal justifications for its holding that pronouncement of sentence at a revocation hearing triggers a 120-day Rule 35(b) period. First, the court noted that a trial judge may either suspend the imposition of sentence and place the defendant on probation, or it may impose a term of imprisonment, suspend the execution of sentence, and order probation. The Supreme Court in Korematsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 1126, 87 L.Ed. 1497 (1943), declared the difference between these alternatives to be meaningless from the point of view of the probationer. From this the Johnson court reasoned that since an offender whose sentence is initially withheld has 120 days to petition for reduction of sentence after his probation is revoked, see note 7, supra, the principle of law requiring similar treatment of persons similarly situated calls for an identical 120-day period for probationers for whom the execution of sentence has been suspended. 634 F.2d at 95-96. This conclusion is contrary to reality and extends Korematsu far beyond its proper application.
In Korematsu, the question was whether an order placing a defendant on probation with pronouncement of sentence suspended was a final order for purposes of appeal. The Supreme Court had previously held that when a court imposes sentence and then suspends its execution, the judgment is final and appealable.10 In this context, the Court concluded that the difference to the probationer between suspension of sentencing and suspension of execution of sentence was trifling: in both cases, there has been a determination of guilt, and in both cases the offender must abide by similar orders of the court. Therefore, the order placing the defendant on probation and suspending the imposition of sentence was appealable. Nothing in Korematsu intimates that the distinction between suspension of imposition of sentence and the suspension of execution of sentence is meaningless in all contexts. It is surely not meaningless here. When sentence has been imposed and its execution suspended, the probationer may make a Rule 35(b) motion and the court may entertain it as if execution of sentence had not been suspended; the probationer and the court know precisely what awaits the offender if his probation is later revoked. On the other hand, when sentencing itself has been suspended, there is no basis whatever for a motion to reduce a sentence which has yet to be determined. The Johnson court‘s premise that probationers in the two situations are similarly situated is wrong and its reasoning groundless.
The Johnson court noted secondly that ”
Even assuming arguendo that it is unrealistic for a defendant who has been granted probation to expect Rule 35(b) relief from the sentencing judge, the Johnson court‘s arithmetic is flawed. Every defendant has his first chance to plead for leniency
Furthermore, we question the premise that the period following imposition of sentence is not a realistic opportunity for a probationer to present a Rule 35(b) motion. While a probationer may be less motivated than an offender serving active time to seek a reduction of sentence, there is no question that the law permits him to do so and that the law requires the judge deciding the motion to entertain it seriously. The 120 days following pronouncement of a suspended sentence is a proper, if not optimal, opportunity to seek a reduction of sentence.
Our holding, therefore, permits every probationer his two bites at the apple and more: first, before the initial imposition of sentence; second, at the revocation hearing; and, more, at the hearing on the Rule 35(b) motion within 120 days after the pronouncement of sentence. The Third Circuit would give three bites and more.
The Eighth Circuit in Colvin, supra, adds little to the analysis in Johnson. We comment only on the Colvin court‘s observation that
To hold [that the district court lacks jurisdiction of a
Rule 35(b) motion following revocation of probation] would place sentence [then] imposed beyond reconsideration at a time when the need for reconsideration is at least as great as after the original sentencing, except in cases where it was the imposition of sentence that was suspended, and not its execution.... The opportunity for a sentencing judge, at some remove in time from the immediacy of the crime, to reflect upon and reconsider sentence is just as important in cases where execution of sentence has been suspended, as it is in cases where imposition of sentence has been suspended.
The need for reconsideration of sentence is, in fact, not so great after a revocation of probation as after the initial imposition of sentence. The factors normally considered in determining sentence are the nature and circumstances of the offense and the offender and the four purposes of sentencing: punishment, deterrence, incapacitation, and rehabilitation. The district court‘s view of these factors is likely to change little, if at all, between the end of the Rule 35(b) period following the imposition of sentence and the revocation hearing. Our holding permits the sentencing judge, in full measure, the opportunity at the revocation hearing to reconsider sentence at a remove from the immediacy of the crime.11
To summarize, we find that the language of
In this case, the district court premised the reinstatement of Rice‘s sentence on the assumption that it could entertain a subsequent motion to reduce sentence. Not only did this incorrect view affect the court‘s decision, but also the court‘s statement of this view may well have dissuaded Rice from presenting all available evidence in support of leniency and, in particular, in explanation or mitigation of the pending rape charge. We must therefore remand to enable the district court to consider whether to reinstate or reduce the sentence it originally imposed.
AFFIRMED in part, and REMANDED for further proceedings.
R. LANIER ANDERSON, III, Circuit Judge, specially concurring:
I concur in the opinion of the majority, but write separately to express reservations in one regard. I agree that a literal reading of