Opinion
No. 4822.
June 9, 1954.
James W. Wilson, Denver, Colo., for appellant.
Milton P. Beach, Oskaloosa, Kan., for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
Appellant Dodd pleaded guilty to the first five counts of an indictment which charged him with interstate transportation of falsely made and forged checks in violation of 18 U.S.C.A. § 2314. He was sentenced to serve a term of five years on each count. The sentences imposed upon counts one and two were to run consecutively, while the sentences on counts three, four and five were to run concurrently with that imposed on count one. He is now serving the first count sentence. Dodd has filed a motion in which he seeks to have the sentences vacated and to be placed on probation. The sole ground for this relief is that he was mentally incompetent at the time that he entered his plea of guilty. He has heretofore unsuccessfully sought relief from these sentences upon the same ground. Dodd v. United States, 10 Cir., 196 F.2d 190, certiorari denied 343 U.S. 987, 72 S.Ct. 1084, 96 L.Ed. 1374. This appeal is from a denial of the motion.
We need not consider the question relating to the power of the District Court to grant probation after the beginning of the service of a sentence imposed on one count but prior to the beginning of a sentence imposed on another count. United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309. Granting of probation rests in the sound discretion of the sentencing court and, "the exercise of that discretion cannot be questioned on appeal, except for arbitrary or capricious action amounting to a gross abuse of discretion." Humes v. United States, 10 Cir., 186 F.2d 875, 878. No such abuse of discretion appears in this case.
Judgment affirmed.