UNITED STATES of America, Plaintiff-Appellee, v. CHICAGO PROFESSIONAL SCHOOLS, INC., et al., Defendants-Appellants

United States Court of Appeals for the Seventh Circuit1962-05-03No. No. 13525

302 F.2d 549

Summary · law.co

Holding. The appellate court affirmed the district court's denial of the sentence-reduction motion, holding that the 60-day time limit in Rule 35 is mandatory and was not tolled by the defendants' motions to recall the appellate mandate pending in the higher court.

Defendants Doris Irvin and Chicago Professional Schools, Inc. appealed a district court decision denying their motion to reduce their sentences under Rule 35 of the Federal Rules of Criminal Procedure. The defendants' conviction and sentences had been affirmed on appeal in April 1961. After that affirmance, the defendants filed multiple motions in the appellate court to recall the mandate, which were denied. The defendants then filed their motion to reduce sentence in the district court on September 27, 1961—more than 60 days after the appellate mandate was filed in the district court on July 10, 1961.

The defendants argued that their pending motions to recall the mandate in the appellate court should have tolled (paused) the 60-day time limit under Rule 35, allowing the district court to consider their sentence-reduction motion even after the deadline had passed. The appellate court rejected this argument, holding that the time period prescribed by Rule 35 is mandatory and cannot be extended or tolled by subsequent motions in the appellate court. The court cited established precedent holding that district courts lack authority to reduce sentences outside the strict 60-day window.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the 60-day deadline for sentence reduction under Rule 35 is mandatory or directory
Whether motions to recall an appellate mandate toll the Rule 35 time period
Scope of district court jurisdiction to modify sentences after appellate affirmance

Procedural posture

Defendants appealed the district court's denial of their Rule 35 motion to reduce or correct sentence, which was filed more than 60 days after the appellate mandate was received by the district court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

SCHNACKENBERG, Circuit Judge.

Doris Irvin also known as Doris Keane, and Chicago Professional Schools, Inc., defendants, have appealed from a judgment of the district court, entered September 27, 1961, denying for want of jurisdiction the defendants’ motions to correct or reduce sentence and for a stay of commitment, made pursuant to Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

We heretofore, on April 26, 1961, affirmed the judgment of conviction including the sentences imposed on the defendants herein. 7 Cir., 290 F.2d 285. Thereafter defendant Doris Keane filed a petition for rehearing on May 11, 1961, which we denied on May 18, 1961. On May 24, 1961 she filed a motion to stay mandate, and on May 25, 1961 we stayed the mandate for 45 days. That writ issued from this court to the district court on July 7, 1961 and was filed in the district court on July 10, 1961. Defendants filed a motion to recall the mandate on July 10, 1961 and on July 26, 1961 this court denied said motion.

On August 12, 1961 defendant Irvin filed a second motion to recall the mandate, which was answered by the government, following which we entered an order on September 25, 1961 denying the second motion to recall the mandate.

On September 27, 1961, defendants filed and the district court denied defendants’ application for reduction of sentence, supra, which is the judgment appealed from.

Rule 35 of the Federal Rules of Criminal Procedure provides:

“The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an applica- . tion for a writ of certiorari. (Italics supplied.)”

It will be noted that defendants’ motion for reduction of sentence was filed on September 27,1961, which was more than 60 days after July 10, 1961, when the mandate of this court was filed in the district court. In an attempt to avoid the effect of rule 35, defendants argue that the pendency herein of the attempts in this court to recall our mandate had the effect of revesting this court with jurisdiction over the cause and reopened the matter of the appeal during the pendency of said motions and by such actions necessarily tolled the time of the running of the requirement for seeking relief in the district court under rule 35. They argue that as long as the mandate was subject to recall and the judgment of this court was subject to change no relief under rule 35 could be applied for or granted by the district court.

In United States v. Robinson, 361 U.S. 220, 226, 80 S.Ct. 282, 286, 4 L.Ed.2d 259, the court said:

“ * * * Similarly, it has been held that a District Court may not reduce a sentence under Rule 35 after expiration of the 60-day period prescribed by that Rule regardless of excuse. United States [ex rel. Quinn] v. Hunter, 162 F.2d 644 (C. A. 7th Cir.). * * *”

Despite this authoritative statement, defendant argues that the following language from rule 45(b) is merely directory : “ * * * but the court may not enlarge the period for taking any action under Rules 33, 34, 85, * * * ”. (Italics supplied.)

However, under the holding in Robinson we construe as mandatory the language of rules 35 and 45(b).

In United States ex rel. Quinn v. Hunter, 162 F.2d 644, 647, cited in Robinson, we said, referring to United States v. Smith, 331 U.S. 469, 473, 67 S.Ct. 1330, 1332, 91 L.Ed. 1610:

“The court in the recent Smith case, supra, held that the trial court was empowered to grant new trials only within the time limit fixed by Rule 33. The same reasoning leads us to the view that the court is empowered to correct or modify a sentence only within the time limit fixed by Rule 35.”

We are forced to conclude that by none of the proceedings in this court was the time fixed by rule 35 tolled for the filing of defendants’ application for reduction of sentence under rule 35, and that therefore the district court did not err in entering the judgment from which defendants have appealed.

Judgment affirmed.