(dissenting) :
I dissent.
I would affirm the order of the district court which corrected the record so that it would reflect what the court intended to do upon sentence, what the court then had the power to do, and what everyone understood the court had the power to do at that time, namely, to impose a sentence of seven years on one count and a sentence of five years on the other count.
The majority opinion, in my view, is a boot-strap argument which justifies reversal of the order of the district court by calling it a name and that name is “increasing the sentence.” This is simply contrary to fact. The district judge was not increasing the sentence when he corrected the record. The sentence remained the same; the record was merely corrected so that the seven-year sentence would rest on the basis which was always there, namely, the conviction on count one. No one noticed the error at the time of sentence; no one supposed that the judge was doing anything beyond his power. The judge was in error not as to his power to impose a seven-year sentence but only as to which count gave him the power. What he did at the time of the sentence was correctly done except for the inadvertent error of miscalling the count. This distinguishes this case from those cited by Judge Anderson. There is no case in this Circuit or elsewhere which requires us to hold that the court may not correct such an error.
Does anyone doubt for a moment that the judge could have made this correction on the day of sentence? See Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). If this is so it seems to me that the record may be corrected at any time so long as the intent of the court is crystal clear, as it is here, from the record and from what the judge himself has said. See Rule 36, Federal Rules of Criminal Procedure; 1 also United States v. Adams, 362 F.2d 210, 211 (6 Cir. 1966) (dicta). Here Judge Cannella was the sentencing judge, and it was he who corrected the record on the government’s motion. In his written opinion he stated that the sentences were transposed through “inadvertence and error.”
We ill-serve the administration of criminal justice when we say that it is error for a court to correct its own record. The defendant is no worse off by the correction than he thought he was originally. Indeed, everyone believed him to be serving his seven-year sentence — a sentence which the court was fully empowered to impose. Thus the court embraces an inconsequential technicality, giving the defendant a wholly unmerited windfall. A decision such as this only serves to support the view of a substantial proportion of the public that the recent decisions of many appellate courts tend to give every conceivable advantage to defendants and to fault the trial courts and the government upon every pretext, however insubstantial.
I would affirm the order of the district court.
. Rule 36, Federal Rules of Criminal Procedure :
“Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”