Frank J. McCartney v. United States

Appellant asserts that through oversight the District Court failed to credit him on resentencing with good-conduct time and industrial good-time earned by him under the original sentence, and that through further oversight the District Court, on motion to modify sentence, failed to correct this error.

In 1959 appellant pleaded guilty to three counts of bank robbery and was sentenced to a prison term of fifteen years. This judgment subsequently was vacated following remand from this court-on appeal from denial of relief under 28 U.S.C. § 2255 . McCartney v. United States, 343 F.2d 471 (9th Cir. 1965).

In April, 1966, appellant again pleaded guilty to the three counts, and on April 5, 1966, was sentenced on his plea. The sentence imposed was for eight years, a reduction made in order that appellant might have credit for time served under the original judgment.

The intention of the court at this time appears clear. It wished appellant “to have credit for every day he has served in prison.”

On May 31, 1966, appellant filed in the District Court a “petition for modification of sentence” under Rule 35, F.R. Cr.P., asserting that the sentencing judge’s intention had not been carried…