Phillips v. United States, 184 F.2d 573 (8th Cir. 1950)

This is an appeal from an order denying the motion of the appellant for the correction of a sentence imposed upon him on February 11, 1949, as the result of his waiving prosecution by indictment and pleading guilty to an information. The information contained five counts, each of which charged a separate violation of the National Motor Vehicle Theft Act, § 2312, Title 18 U.S.C.A.

The sentence, so far as pertinent, reads as follows: "It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year and one (1) day on each of counts 1, 3 and 4, and for a period of three (3) years on each of counts 2 and 5, the sentences imposed to be served consecutively, for a total of nine (9) years and three (3) days, without costs."

The appellant asserts that the sentence is so uncertain and indefinite as to the order in which the terms of imprisonment are to be served that they must be construed to run concurrently and are in legal effect a single term of three years.

We agree with the District Court that the sentence imposed upon the appellant was not uncertain, and that the terms of imprisonment run consecutively in the order in which the counts upon which they are based appear in the information. See United States v. Daugherty, 269 U.S. 360, 46 S. Ct. 156, 70 L. Ed. 309; Nivens v. United States, 5 Cir., 139 F.2d 226, 227; Buie v. King, 8 Cir., 137 F.2d 495, 499.

The order appealed from is affirmed.