Fairchild, Stevens and Sprecher, Circuit Judges.
FAIRCHILD, Circuit Judge.
This is an appeal from orders of the district court entered April 17, 1973, Judge Austin, presiding. On March 28, 1973, an order had been entered by the district court, Judge Perry presiding, suspending a sentence previously imposed and placing defendant on probation. One of the April 17 orders vacated the order of March 28. The other reduced the three year sentence previously imposed by one month, leaving it for the most part in effect. This appeal presents the question whether the March 28 order was void, and if not, whether the April 17 orders have any effect. Several subsidiary questions must also be resolved.
We conclude that the March 28 order was not void, although it requires correction; that its substance is controlling; and the April 17 orders, appealed from, must be reversed.
On November 9, 1971, defendant was convicted in the district court for the northern district of Illinois of refusal to submit to induction, and was sentenced to three years imprisonment. On appeal this court affirmed. United States v. Teresi, 474 F.2d 759 (1973). Our mandate was filed in the district court March 23, 1973, and, apparently by arrangement with the marshal, defendant was to surrender at noon March 28, 1973 to begin his sentence.
During the morning of March 28, defendant came to the district court with a motion to reduce sentence. Because Judge Napoli, who had imposed sentence, had died July 12, 1972, defendant presented his motion to Judge Parsons, then emergency judge. Judge Parsons declined to rule upon the motion, but referred the matter to the Executive Committee for reassignment.
The Executive Committee assigned defendant's case to Judge Austin.*fn1 Judge Austin, who was away for several days' vacation, had made arrangements with Senior District Judge J. Sam Perry to hear emergency motions, and defendant sought to bring his motion before Judge Perry.
Judge Perry agreed to hear the motion. Thereafter, following notice to the government, a hearing was conducted at which defendant presented several witnesses on his behalf. During this proceeding the government pointed out that defendant had originally asked for probation and Judge Napoli had denied it, but the government did not ask for a continuance or otherwise object to Judge Perry's decision to consider the motion. The government must be deemed to have waived non-jurisdictional challenges.
At the conclusion of the hearing, Judge Perry entered the following order:
"It is hereby ordered that the motion of defendant to reduce the sentence is denied, and motion to place defendant on probation is hereby granted. It is further ordered that the three year sentence of defendant to the custody of the Attorney General of the United States is hereby suspended and defendant is placed on probation for a period of three years upon the following conditions: First that he seek custody of his minor daughter and support her during the period of probation; second that he shall spend six months in the custody of the Attorney General of the United States beginning on such date as this Court shall fix and determine during said period of probation provided however that if this Court is satisfied with defendant's conduct while on probation and does not order defendant to be so committed for six months period before September 27, 1975, then on that date defendant's probation shall be terminated and the condition of spending 6 months in the custody of the Attorney General of the United States shall automatically be waived and become null and void."
Defendant's effort to obtain a hearing extended well beyond the hour he was to report to the marshal. The marshal was apprised of defendant's presence in the federal building and his motivations for not reporting by noon. The marshal made no effort to take defendant into custody and, after the hearing, the defendant reported to a probation officer.
On April 4, 1973, the government presented to Judge Austin a motion to vacate Judge Perry's March 28 order. A hearing was conducted April 17. At this proceeding Judge Austin indicated that defendant's motion was not an emergency. He expressed his belief that since he had been assigned defendant's case he only could properly deal with the matter and Judge Perry's order was void. Judge Austin vacated Judge Perry's order and entered an order reducing defendant's sentence from three years to two years and eleven months to reflect the one month defendant had served on probation. Aside from the adjustment for the one month, the April 17 orders purported to leave the original sentence in force and unstayed.
The orders directly before us on appeal are those entered April 17. It will be seen, however, that because of our view with respect to double jeopardy resulting from imposition of sentence of imprisonment after service of a period of probation had begun, the critical question is whether the March 28 order was void.
Neither the lapse of time nor the affirmance of the original judgment deprived the district court of jurisdiction to suspend the execution of sentence and place the defendant on probation. Kriebel v. United States, 10 F.2d 762 (7th ...