His 301

Evaluate current issues for constitutional revision. Predict the topic of the next constitutional amendment.

His 301

Before passing sentence, the District Judge asked, "Did you want to say something? Petitioner was then sentenced to imprisonment for 20 years on each of the first two counts and for 25 years on His 301 third count, all to run concurrently.

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Seven years later, petitioner filed two motions under Rule 35 of the Federal His 301 of Criminal Procedure to vacate the sentence, claiming that 1 it was illegal because he had not been permitted to speak in his own behalf prior to sentencing, as required by Rule 32 aand 2 the year sentence under Count 3 for aggravated bank robbery was illegal because the judge had exhausted his power to sentence when he imposed the sentence under Count 2 for unaggravated bank robbery.

Both motions were denied. Defendant, the petitioner here, in was convicted in the United States District Court for Massachusetts on a three-count indictment charging him with 1 entering a bank with intent to commit a felony, in violation of 18 U.

Five days later, after defendant's counsel had completed motions in arrest of judgment and for new trial, the district judge asked, "Did you want to say something? The defendant's age, family status, and physical condition were mentioned, as was the fact that he was then serving a sentence in a state penitentiary, which would delay the time from which his federal punishment would run.

Thereupon the trial judge, presumably relying upon a presentence probation report, observed that the defendant was a hardened criminal, that he had in the past committed other armed robberies, and that there was no warrant to believe that rehabilitation was possible. He then pronounced sentence as follows: On Count 1 of the indictment 20 years, on Count 2 of the indictment, that you be imprisoned for 20 years, and on Count 3 of the indictment, that you be imprisoned for the period of 25 years, said prison sentence to run concurrent and to begin upon your release from prison upon the sentence you are now receiving under order of the State Court.

These two cases, here consolidated, arise out of two separate actions brought some seven years after conviction under Rule 35 of the Federal Rules of Criminal Procedure in an effort to set aside the sentence which petitioner asserts to be illegal.

If Rule 32 a constitutes an inflexible requirement that the trial judge specifically address the defendant, e. As early asit was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal.

See Anonymous, 3 Mod. Taken in the context of its history, there can be little doubt that the drafters of Rule 32 a intended that the defendant be personally afforded the opportunity to speak before imposition of sentence.

We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century -- the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel.

But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation.

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: United States,F.

However, we do not read the record before us to have denied the defendant the opportunity to which Rule 32 a entitled him.

The single pertinent sentence -- the trial judge's question "Did you want to say something? A record, certainly this record, unlike a play, Page U. It may well be that the defendant himself was recognized and sufficiently apprised of his right to speak, and chose to exercise this right through his counsel.

Especially is this conclusion warranted by the fact that the defendant has raised this claim seven years after the occurrence. The defendant has failed to meet his burden of showing that he was not accorded the personal right which Rule 32 a guarantees, and we therefore find that his sentence was not illegal.

However, to avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think that the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant.

Hereafter, trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing. The claim is that, since the two counts did not charge separate offenses, the judge's power to sentence expired with the imposition of sentence under Count 2, and that five years should be remitted from petitioner's concurrent sentence.

The Government concedes that Count 3 did not charge a separate offense, see Holiday v. In his charge to the jury, he stated: That is not a separate offense. I will speak to you later Page U. That is not a separate count, to repeat, that is an aggravation of the second count, robbing the bank.

This is not a case where sentence was passed on two counts stating alternative means of committing one offense; rather, the third count involved additional characteristics which made the offense an aggravated one -- namely, putting persons in jeopardy of life by use of a dangerous weapon.Read this essay on His/ Come browse our large digital warehouse of free sample essays.

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His 301

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His 301

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