Appeal from the United States District Court for the Southern District of Illinois, Springfield Division - No. S CIV 73 233 Harlington Wood, Jr., Judge.
Pell, Circuit Judge, Stevens, Circuit Judge, and Joseph Sam Perry, Senior District Judge.*fn*
PERRY, Senior District Judge.
This is an appeal from orders of the District Court denying certain relief requested in a motion filed pro se under 28 U.S.C. § 2255 by William Wright, petitioner below.
Wright was indicted on three substantive counts of bank robbery, under 18 U.S.C. § 2113 and § 2, and one conspiracy count, under 18 U.S.C. § 371, all charges stemming from an armed robbery of the Land of Lincoln Bank of Springfield, Illinois, on July 14, 1967. Count I of the indictment charged that on July 14, 1967, Wright robbed the Land of Lincoln Bank in Springfield, Illinois, by force, violence, and intimidation, in violation of 18 U.S.C. §§ 2 and 2113(a); Count II charged that on the same date Wright stole deposits of the same bank in violation of 18 U.S.C. §§ 2 and 2113(b); Count III charged that Wright, during the course of the robbery, put lives in jeopardy by the use of a dangerous weapon, i.e., a revolver, in violation of 18 U.S.C. §§ 2 and 2113(d); Count IV charged that Wright conspired to commit the offenses charged in Counts I, II, and III, in violation of 18 U.S.C. § 371. Wright pleaded guilty to all counts and on February 19, 1968 he was convicted and sentenced to 10 years under Count I, 10 years under Count II, 15 years under Count III, and 5 years under Count IV, all sentences to run concurrently.
On December 26, 1973, alleging that he had fully served the sentence imposed under Count I, and seeking to have the greater sentence imposed under Count III vacated as being illegal, - thus resulting in his release from confinement, - Wright filed pro se a motion entitled "Motion To Annul The Convictions and Sentences Imposed Under Counts Two (2) and Three (3) Of The Indictment, Pursuant To Title 28, U.S.C.A., Section 2255". In the motion Wright attacked both the validity of the sentences and the validity of the underlying convictions. In his prayer for relief, Wright petitioned the court to vacate the sentences and the convictions under Counts II and III, and to release him from imprisonment by virtue of his having served in full the sentences imposed under Counts I and IV.
On October 25, 1974 the District Court entered an order vacating the sentences imposed under Counts I, II and IV, but leaving undisturbed the 15-year sentence imposed under Count III. Subsequently Wright filed, - both pro se and through his appointed counsel, - motions for rehearing and reconsideration. In the motion filed by his counsel, Wright alleged that (1) his pro se § 2255 motion raised the issue of the illegality of the convictions, as opposed to the illegality of the sentences, as argued in the briefs filed by Wright's appointed counsel and by the Government; (2) the issue of the illegality of the convictions was not argued by his appointed counsel, although it was raised in his § 2255 motion; (3) the court's order of October 25, 1974, while deciding the issue of the illegality of the sentences, did not decide the issue of the illegality of the underlying convictions; and (4) the final determination of the issues raised in the motion requires a decision on the issue of the illegality of the underlying convictions.
In an order entered November 21, 1974, the District Court denied Wright's motion for rehearing and reconsideration, and re-affirmed its order of October 25, 1974. On December 9, 1974 Wright appealed from both orders.
The issues on this appeal are:
(1) whether the refusal of the District Court to order Wright released from imprisonment constituted a violation of the double jeopardy clause of the Fifth Amendment;
(2) whether the District Court erred by applying, in the procedure employed for correcting illegal sentences, the "intention of the sentencing judge" theory; and
(3) whether the District Court erred by not vacating the convictions underlying the sentences illegally imposed by the trial judge.
Wright contends, first, that his sentencing by the trial judge was clearly illegal because the judge imposed multiple convictions and multiple sentences although only one bank robbery was involved. Since it is well settled that the Bank Robbery Act (18 U.S.C. § 2113) did not create separate crimes but merely prescribed alternative sentences for the same crime depending upon the manner in which the crime was perpetrated,*fn1 we agree that Wright perpetrated a single crime for which a single sentence should have been imposed, and that the trial judge erred in imposing multiple sentences, even though he ordered that they were to run concurrently.*fn2 Wright urges, however, that the failure of the District Court to discharge him violated the double jeopardy clause of the Fifth Amendment and that we should now order him released from imprisonment on the grounds that he has fully served one sentence under a valid conviction (Brief of Appellant at 21). For several reasons, we cannot agree. First, the District Court in its order of October 25, 1974 expunged all but one of the sentences originally imposed. Therefore the error committed by the original illegal sentencing was subsequently corrected by the District Court. See United States v. Leather, 271 F.2d 80 (7th Cir. 1959), cert. ...