Summary
holding that correction of an illegal sentence with a more severe sentence "does not violate the constitutional right of a convicted person"
Summary of this case from State v. RiffleOpinion
No. 17517.
January 29, 1959.
Horacio Reyes, in pro. per.
Arthur L. Luethcke, Asst. U.S. Atty., Russell B. Wine, U.S. Atty., San Antonio, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
This is an appeal from an order denying relief, without a hearing, on appellant's motion to set aside a judgment sentencing him to a period of ten years in custody of the Attorney General.
Appellant's complaint is strictly one of law and not of facts, and we hold that the trial court did not err in denying relief on the ground that the files and records showed conclusively that appellant was entitled to no relief.
Upon conviction of a narcotics violation as to which a minimum sentence of five years must be given for a first offender, the appellant admitted to a prior conviction, thus making mandatory a ten year sentence. The trial court sentenced him to seven years. Three days later, upon learning that such sentence was less than the minimum provided by law, the trial court had appellant brought into court and corrected the sentence to ten years. It is from this order correcting sentence that appellant appeals.
As we have recently pointed out in Enzor v. United States, 5 Cir., 262 F.2d 172, the trial court has this power. Rule 35, F.R.Crim.P., 18 U.S.C.A. Rule 35, provides: "The court may correct an illegal sentence at any time." Such correction does not violate the constitutional rights of a convicted person. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818.
The judgment is affirmed.