United States v. Dominic Principato, 717 F.2d 1313 (9th Cir. 1983). · Go Syfert
United States v. Dominic Principato, 717 F.2d 1313 (9th Cir. 1983). Cases Citing This Book View Copy Cite
9 citation events (1 in the last 25 years) across 5 distinct courts.
Strongest positive: Miller v. People (virginislands, 2017-08-09)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Miller v. People
virginislands · 2017 · confidence medium
No. 92-5194, 1993 U.S. App. LEXIS 9130 , at*10 (10th Cir. Apr. 15,1993) (unpublished) (holding that court erred in imposing a split sentence in response to appellant’s motion to reduce sentence where the appellant had already served more than six months for the original sentence); United States v. Principato. 717 F.2d 1313, 1314 (9th Cir. 1983) (explaining that imposition of split sentence was illegal after defendant already served more than six months under the original sentence); Advisory Committee Note, Fed.
discussed Cited as authority (rule) United States v. Boris Olarte-Morales
10th Cir. · 1993 · confidence medium
See Martin, 938 F.2d at 884 (split sentence of 8 months imprisonment and 12 months probation imposed after revocation of probation was illegal where defendant had already served 4 months in prison); United States v. Principato, 717 F.2d 1313, 1314 (9th Cir.1983) (split sentence of 6 months imprisonment and 3 and 1/2 years probation was illegal where defendant had already served 6 months in prison), cert. denied, 465 U.S. 1081 (1984).
discussed Cited as authority (rule) United States v. David John Martin, Jr.
8th Cir. · 1991 · confidence medium
United States v. Principato, 717 F.2d 1313, 1314 (9th Cir.1983), cert. denied, 465 U.S. 1081 , 104 S.Ct. 1448 , 79 L.Ed.2d 767 (1984); United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979). 3 Thus, the combination of eight months confinement with probation resulted in an illegal sentence.
cited Cited "see" United States v. Mark A. Barquera
9th Cir. · 1994 · signal: see · confidence high
See United States v. Principato, 717 F.2d 1313, 1314 (9th Cir.1983), cert. denied 465 U.S. 1081 (1984).
discussed Cited "see, e.g." United States v. Alvin Gerson Levitt
9th Cir. · 1986 · signal: see, e.g. · confidence medium
See, e.g., United States v. Principato, 717 F.2d 1313, 1314 (9th Cir.1983), cert. denied, 465 U.S. 1081 , 104 S.Ct. 1448 , 79 L.Ed.2d 767 (1984); Nicholas v. United States, 527 F.2d 1160, 1161 (9th Cir.1976); United States v. Kohlberg, 472 F.2d 1189 (9th Cir.1973).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Dominic PRINCIPATO, Defendant-Appellant
83-5103.
Court of Appeals for the Ninth Circuit.
Oct 6, 1983.
717 F.2d 1313
Nora Manella, Asst. U.S. Atty., Los An-geles, Cal., for plaintiff-appellee., Maria Stratton, Deputy Fed. Public Defender, Los Angeles, Cal., for defendant-appellant.
Schroeder, Canby, Hoffman.
Cited by 7 opinions  |  Published
SCHROEDER, Circuit Judge.

The district court in 1980 imposed upon appellant a “split” sentence of two years imprisonment (18 months suspended) plus five years probation. That sentence was appropriate under the provisions of 18 U.S.C. § 3651. [1] Two years later the same district court, upon a petition for revocation of probation, imposed a second “split” sentence of 18 months (12 months suspended) plus three and one-half years probation. This sentence, as the government acknowledges, was not appropriate because section 3651 prohibits a defendant who has already served six months in prison from receiving a second sentence combining both imprisonment and probation. United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979). Defendant now appeals the district court’s denial of his motion to correct the illegal sentence pursuant to Fed.R.Crim.P. 35(a).

While we agree with defendant that his second sentence was illegal and must be corrected, we do not agree with his argument that the only possible remedy is to terminate his remaining probation term. In Clayton, we held that a court may always correct an illegal sentence by imposing all or part of the sentence which might originally have been imposed. 588 F.2d at 1291. See Nicholas v. United States, 527 F.2d 1160 (9th Cir.1976); United States v. Kenyon, 519 F.2d 1229 (9th Cir.), cert. denied, 423 U.S. 935, 96 S.Ct. 293, 46 L.Ed.2d 267 (1975); 18 U.S.C. § 3653. We must therefore remand for resentencing and allow the district court to impose either imprisonment or probation in place of the second “split” sentence. In either case, full credit must be given for the time defendant has already served. Clayton, 588 F.2d at 1292.

Vacated and remanded.

1

. 18 U.S.C. § 3651 provides in pertinent part:

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.