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Berman v. United States

U.S.
Dec 6, 1937
302 U.S. 211 (1937)

Summary

holding that the final judgment in a criminal case is the sentence

Summary of this case from United States v. Turner

Opinion

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 26.

Argued November 9, 1937. Decided December 6, 1937.

1. The sentence in a criminal case is the final judgment. P. 212. 2. A sentence remains the final judgment, and is appealable, notwithstanding a suspension of execution. P. 212. In criminal cases, as well as civil, the judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. 3. The finality of a sentence and the right to appeal from it are not affected by placing the convict on probation. P. 213. 4. During the pendency of an appeal from a sentence, the District Court is without jurisdiction to modify its judgment by resentencing the prisoner. P. 214. 88 F.2d 645, reversed.

CERTIORARI, 301 U.S. 675, to review a judgment dismissing an appeal from a criminal sentence and affirming a later one imposed after the appeal was taken.

Mr. Samuel H. Kaufman, with whom Messrs. Emil Weitzner and Isadore Polier were on the brief, for petitioner.

Mr. William W. Barron, with whom Solicitor General Reed, Assistant Attorney General McMahon and Mr. W. Marvin Smith were on the brief, for the United States.


On conviction upon an indictment containing several counts for using the mails to defraud (18 U.S.C. § 338) and for conspiracy to that end (18 U.S.C. § 88), petitioner was sentenced on each count to serve a year and a day, the terms of imprisonment to run concurrently. Execution of the sentence was suspended and petitioner was placed on probation for two years. Petitioner appealed from the sentence.

While the appeal was pending and without its withdrawal, petitioner fearing its dismissal applied to the District Court for resentence. That court reimposed the prior sentence of imprisonment, again suspending its execution, and added a fine of one dollar upon each count. The court did not vacate the prior sentence. Petitioner then appealed from the second sentence.

The Circuit Court of Appeals held that, by reason of suspension of its execution, the first sentence was interlocutory and dismissed the first appeal. Assuming that appeal to be a nullity, the Court of Appeals thought that the District Court had power to resentence; that petitioner could not complain of the fine as it was imposed at his request; and that the second sentence of imprisonment, if taken alone, was interlocutory. The judgment imposing the fine was affirmed and the appeal from the second sentence of imprisonment was dismissed. 88 F.2d 645.

We are of the opinion that the Court of Appeals erred in dismissing the first appeal as interlocutory. Petitioner was convicted and sentenced. Final judgment in a criminal case means sentence. The sentence is the judgment. Miller v. Aderhold, 288 U.S. 206, 210; Hill v. Wampler, 298 U.S. 460, 464. Here, the imposition of the sentence was not suspended, but only its execution. The sentence was not vacated. It stood as a final determination of the merits of the criminal charge. To create finality it was necessary that petitioner's conviction should be followed by sentence ( Hill v. Wampler, supra) but when so followed the finality of the judgment was not lost because execution was suspended. In criminal cases, as well as civil, the judgment is final for the purpose of appeal "when it terminates the litigation . . . on the merits" and "leaves nothing to be done but to enforce by execution what has been determined." St. Louis, I.M. S.R. Co. v. Southern Express Co., 108 U.S. 24, 28; United States v. Pile, 130 U.S. 280, 283; Heike v. United States, 217 U.S. 423, 429.

Petitioner stands a convicted felon and unless the judgment against him is vacated or reversed he is subject to all the disabilities flowing from such a judgment. The record discloses that petitioner is a lawyer and by reason of his conviction his license was subject to revocation (and petitioner says that he has been disbarred) without inquiry into his guilt or innocence. Matter of Ackerson, 218 A.D. (N.Y.) 388, 392; 218 N.Y.S. 654 . His civil rights may be determined solely by reference to the judgment.

Placing petitioner upon probation did not affect the finality of the judgment. Probation is concerned with rehabilitation, not with the determination of guilt. It does not secure reconsideration of issues that have been determined or change the judgment that has been rendered. Probation or suspension of sentence "comes as an act of grace to one convicted of a crime." Escoe v. Zerbst, 295 U.S. 490, 492, 493. The considerations it involves are entirely apart from any reexamination of the merits of the litigation. Probation was designed "to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable." Thus probation cannot be demanded as a right. "The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain." Burns v. United States, 287 U.S. 216, 220. But if final judgment determining his guilt has been rendered, he still has the opportunity to seek by appeal a reversal of that judgment and thus to secure not an opportunity to reform but vindication.

As the first sentence was a final judgment and appeal therefrom was properly taken, the District Court was without jurisdiction during the pendency of that appeal to modify its judgment by resentencing the prisoner. Draper v. Davis, 102 U.S. 370, 371; Keyser v. Farr, 105 U.S. 265, 266; Spirou v. United States, 24 F.2d 796, 797; United States v. Radice, 40 F.2d 445, 446; United States v. Habib, 72 F.2d 271.

The judgment of the Circuit Court of Appeals is reversed so far as it dismissed the first appeal and affirmed the later judgment imposing the fine, and the cause is remanded to that court for further proceedings in conformity with this opinion.

Reversed.


Summaries of

Berman v. United States

U.S.
Dec 6, 1937
302 U.S. 211 (1937)

holding that the final judgment in a criminal case is the sentence

Summary of this case from United States v. Turner

holding that once a sentence is imposed, it is a valid final judgment until it is reversed or vacated

Summary of this case from Murphy v. U.S.

holding that once a sentence is imposed, it is a valid final judgment until it is reversed or vacated

Summary of this case from Wakefield v. United States

holding that once a sentence is imposed, it is a valid final judgment until it is reversed or vacated

Summary of this case from Kelly v. U.S.

holding the district court lacks jurisdiction to consider the defendant's claims after a notice of appeal is filed

Summary of this case from U.S. v. Patillo

holding that a sentence in a criminal case is a final judgment

Summary of this case from McLain v. United States

holding an order imposing sentence but suspending execution of sentence for probation to be a final, appealable order

Summary of this case from Weaver v. State

In Berman v. United States, 302 U.S. 211 (1937), this Court said, "Final judgment in a criminal case means sentence. The sentence is the judgment.

Summary of this case from Bradley v. United States

In Berman v. United States, 302 U.S. 211, we held that when a court had imposed a sentence and then suspended its execution, the judgment was final and would support an appeal. The question here is whether the judgment is equally final when the imposition of sentence itself is suspended and the defendant subjected to probation.

Summary of this case from Korematsu v. United States

In Berman, the district court sentenced the defendant to a 366-day prison sentence but suspended the execution of that sentence and placed the defendant on probation.

Summary of this case from United States v. Richardson

indicating that a judgment of conviction would not be final if the sentence were vacated

Summary of this case from United States v. Pizarro

In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), the Court of Appeals dismissed the defendant's appeal on the ground that the District Court's judgment was interlocutory—because the court had suspended the execution of the defendant's sentence, a term of imprisonment, and placed him on probation.

Summary of this case from United States v. Muzio

defining "sentence" as "[t]he judgment that a court formally pronounces after finding a criminal defendant guilty" and noting that "sentence" is "[a]lso termed judgment of conviction[]"

Summary of this case from Johnson v. U.S.

In Berman, cited above, the Supreme Court said, "Final judgment in a criminal case means sentence. The sentence is the judgment."

Summary of this case from United States v. Bendicks

In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 166, 82 L.Ed. 204, the Court said — "In criminal cases, as well as civil, the judgment is final for the purpose of appeal `when it terminates the litigation * * * on the merits' and `leaves nothing to be done but to enforce by execution what has been determined'", citing several prior Supreme Court opinions.

Summary of this case from Ford Motor Co. v. Busam Motor Sales

In Berman v. United States, 1937, 302 U.S. 211, 212, 213, 58 S.Ct. 164-166, 82 L.Ed. 204, the court said: "In criminal cases, as well as civil, the judgment is final for the purpose of appeal `when it terminates the litigation * * * on the merits' and `leaves nothing to be done but to enforce by execution what has been determined.

Summary of this case from United States v. Horns

stating that "the District Court was without jurisdiction during the pendency of the appeal to modify its judgment by resentencing the prisoner"

Summary of this case from U.S. v. Westberry

noting that district court is without jurisdiction to modify judgment by resentencing defendant during pendency of appeal of judgment

Summary of this case from U.S. v. Martin

In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), this Court said, "Final Judgment in a criminal case means sentence. The sentence is the judgment.

Summary of this case from Hall v. State of Fla.

In Berman v. United States, 1937, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204, it was held that a decree was final "`when it terminates the litigation * * on the merits' and `leaves nothing to be done but to enforce by execution what has been determined'"; and, in John Simmons Co. v. Grier Bros. Co., 1922, 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475, the Court said that a final decree was "one that finally adjudicates upon the entire merits, leaving nothing further to be done except the execution of it."

Summary of this case from Leonia Amusement Corp. v. Loew's Inc.

noting that, in a criminal case, the final judgment includes the sentence

Summary of this case from Ex parte Walker

stating a judgment cannot be final if the sentence has been vacated

Summary of this case from In re Skylstad

In Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937), the United States Supreme Court held that "[f]inal judgment in a criminal case means sentence. The sentence is the judgment."

Summary of this case from State v. Brown

In Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), the Court explained that the sentence is the final determination of the merits of the criminal charge.

Summary of this case from Billis v. State

In Berman v. United States, 302 U.S. 211, 82 L.Ed. 204, 58 S.Ct. 164 (1936), this Court said, `Final judgment in a criminal case means sentence. The sentence is the judgment.

Summary of this case from State v. Wassillie
Case details for

Berman v. United States

Case Details

Full title:BERMAN v . UNITED STATES

Court:U.S.

Date published: Dec 6, 1937

Citations

302 U.S. 211 (1937)
58 S. Ct. 164

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