Wilson v. United States, 154 F.2d 908

Wilson v. United States

154 F.2d 908 | 6th Cir. | 1946

PER CURIAM.

The controversy out of which this appeal arises was before this court in Wilson v. Bell, Warden, 6 Cir., 137 F.2d 716. In that case, while we upheld the judgment of the District Court denying a writ of habeas corpus, we held that the original judgment of seven and one-half years as pronounced from the bench in the robbery case could not be increased by nunc pro tunc order to ten years. We therefore concluded that as to the excessive two and one-half years the sentence is invalid.

Appellant, subsequent to our holding in Wilson v. Bell, Warden, filed a motion to vacate judgment and sentence, in which he reiterated many of the contentions made in the habeas corpus case. We do not discuss at length the contentions that the robbery indictment (case No. 13,-166) was invalid; that appellant was denied constitutional rights at the trial, and was innocent of the charges preferred against him. The appellant was represented by counsel, and pleaded guilty in open court to the charges in question. The indictment fairly informed the appellant of the charge against him and was sufficiently specific, within the holdings in Cochran and Sayre v. *909United States, 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Bogy v. United States, 6 Cir., 96 F.2d 734; Hughes v. United States, 6 Cir., 114 F.2d 285.

However, the District Court erred in failing to correct the sentence in view of our direction in Wilson v. Bell, Warden, supra. It was the duty of the district attorney to apply for such a correction in accordance with our holding.

The case is remanded to the District Court with instructions to correct the sentence in case No. 13,166 in conformity with our opinion in Wilson v. Bell, Warden, supra.