'Only the District Board of Parole, by terminating the conditional release, could cause the unexpired portion of the first sentence to commence to run again * * *.' 110 F.2d 113, 116.
The same court considered this question again in Tippitt v. Wood, 1944, 78 U.S.App.D.C. 332, 140 F.2d 689, 690. Tippitt was sentenced by a federal court in 1934 to six years' imprisonment. In 1938 he was released on parole. In 1939, while still on parole, he committed another federal offense, for which he was convicted and sentenced to four years' imprisonment, 'to run concurrently with any revocation of present suspended sentence and conditional release * * *.' In 1942 Tippitt completed this second sentence, but he was detained to serve the two years remaining on the 1934 sentence. Citing Zerbst v. Kidwell, supra, the court held invalid the portion of the 1939 sentence (quoted above) directing that it be served concurrently with the balance of the previous sentence, as an infringement of the parole board's authority to require the defendant to finish serving that previous sentence independently of any later sentence. Tippitt's case was subsequently presented to another court of appeals, which held the same way. Tippitt v. Squier, 9 Cir., 1944, 145 F.2d 211.
In Quinn v. Hunter, D.C.D.Kan.1946, 64 F.Supp. 653, at page 655, the court refused a writ of habeas corpus on similar facts, saying:
'The proviso placed by the trial court in the sentence in (the second criminal case) * * * providing that said sentence should run concurrently with the unexpired portion of the sentence imposed on the petitioner in (the first criminal case) * * * was beyond the power and authority of said trial court, invalid and of no effect, and did not cause the unexpired portion of said sentence imposed in (the first case) * * * to begin to run at the date petitioner began to serve the sentence in (the second case) * * *.'
Quinn subsequently won a habeas corpus proceeding in another district court, but on appeal the court of appeals reversed on other grounds. United States ex rel. Quinn v. Hunter, 7 Cir., 1947, 162 F.2d 644. The court commented (at page 648):
'It may be the direction that the judgment be served concurrently with the unexpired portion of Quinn's first sentence was of no effect; in fact, in a similar situation it was so held. Tippitt v. Wood (supra) * * * The holding is on the theory that such a direction constitutes an interference by the court with the authority of the Parole Board. See also Zerbst v. Kidwell (supra) * * * Treating this concurrent direction as unauthorized, it was merely surplusage and did not affect the legality of the five year sentence.'
See also Schiffman v. Wilkinson, 9 Cir., 1954, 216 F.2d 589, 590, note 1.
In all cases cited, both sentences were by federal courts. In this case, the prior sentence was by a state court. If we do not have authority to direct that the sentence which we impose be served concurrently with the remaining portion of a prior federal sentence, a fortiori we would have no such authority where the prior sentence is a state sentence.
This Court's direction that the sentence imposed upon petitioner be served concurrently with time remaining on the previous sentence was invalid, but its invalidity does not affect the validity of the sentence to a year and a day. The Court's later action in striking the invalid direction was simply administrative and had no effect on the sentence. Accordingly, the motion will be denied.
The contentions by the petitioner that he was denied his rights by being sentenced in the absence of his counsel are without merit since, in fact, his counsel was present at all times during this case. Counsel was present in Court on October 30, 1959, when the petitioner pleaded guilty, and he was present again on December 4, 1959, when sentence was imposed.
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