Opinion
No. 23587.
October 25, 1966.
Kendell W. Wherry, Asst. U.S. Atty., Tampa, Fla., for appellees.
Before WISDOM, BELL and AINSWORTH, Circuit Judges.
Appellant has appealed from the denial of his petition for habeas corpus. While serving a three-year sentence imposed by United States District Court, Southern District of Florida, for mail fraud, appellant was brought by writ of habeas corpus before the United States District Court, Middle District of North Carolina, for arraignment on a Dyer Act charge ( 18 U.S.C.A. § 2312). He was there represented by counsel and, upon entering a plea of guilty, was sentenced on December 16, 1960 by the federal court in North Carolina on Count I to imprisonment for four years (the term is in dispute, appellant contending the sentence was for two years), to commence at the expiration of the sentence for mail fraud imposed in the federal court in Florida. On Count II he was sentenced to a term of five years, execution was suspended and he was placed on probation for a period of five years to begin with the date of completion of the sentence imposed on Count I. He has now been returned to custody for parole violation. Appellant contends, however, that he had completely served both the sentence imposed in the Florida federal court and the sentence imposed in the North Carolina federal court because he claims the sentence on Count I in the federal court in North Carolina was for two years rather than four years. If so, the parole would have expired prior to the occurrence, which is the basis for the contention he has violated parole.
An evidentiary hearing was held in the present proceedings and appellant was represented by counsel. The official court reporter at the time of sentencing in the federal court in North Carolina testified that there had been an error in the transcription of the proceedings, as reflected in his written summary of the proceedings which shows the term to be two years. He said that he had taken down the judge's oral pronouncement of sentence verbatim by shorthand notes and on an electronic recording device simultaneously. He later checked his notes on the voice record, dictated the report to a secretary who typed the transcript, and when the discrepancy was discovered he was unable to find the voice record. At the hearing the court reporter read from his shorthand notes and testified that in writing down the number of years imposed in the sentence he had used the numerical figure "4". His shorthand notes were received in evidence.
Both the judgment and commitment, and the oral pronouncement as reduced to the court reporter's shorthand notes, are consistent and they show a four-year sentence was imposed on Count I by the court. Accordingly, there was no error in dismissing the petition for writ of habeas corpus.
Affirmed.