(dissenting).
I dissent because I believe the law does not permit the solution of the dilemma of this case that this court is now sanctioning.
The sentence of 5 years probation that the district court imposed on Count 3 for the most aggravated of three crimes charged in the present indictment was beyond doubt a lawful sentence, as I believe all members of the court recognize. After this court affirmed the conviction, 1968, 389 F.2d 563, the case was returned to the district court and that sentence became final. A year later, the district court undertook to set it aside in order to validate a sentence on another count that could not lawfully coexist with it.
It is my understanding of the law that a sentencing judge’s power to modify a valid sentence that he has imposed is of limited duration. At common law and in our federal system before the adoption of the present Rules of Criminal Procedure, such power expired with the relevant term of court. United States v. Mayer, 1914, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129; United States ex rel. Quinn v. Hunter, 7th Cir. 1947, 162 F.2d 644. Now, a district court’s power in this regard is defined and limited by the provision of Rule 35 restricting judicial power to reduce a valid sentence to a time “within 120 days after sentence is imposed, or within 120 days after receipt
by the court of a mandate issued upon af-firmance of the judgment or dismissal of the appeal. * * * ”
Thus, 120 days after it received our mandate issued pursuant to our 1968 af-firmance of McCullough’s conviction, the district court’s power to modify the sentence on Count 3 expired. Yet, more than a year later in October 1969, the district court vacated that sentence and this court now sanctions that action.
The dilemma of this ease arises because so long as the valid sentence on Count 3 shall remain in force, the sentences on Counts 1 and 2, charging lesser crimes based upon parts of the total transaction covered by the charge in Count 3, are invalid. Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. When such a mistake is discovered within 120 days after sentence or within 120 days after the district court has received a mandate of a reviewing court that has sustained the conviction, a comprehensive resentencing is still within judicial control and power of correction. Thus, the district court would have power to vacate the valid but not yet final sentence, as permitted by Rule 35, and then let the otherwise invalid sentence stand.
The same is true when the mistake is discovered on direct appeal. The reviewing court can remand the case for correction of sentence since under Rule 35 judicial power to correct the sentence or sentences has not yet expired. See, for example, United States v. Chester, 3rd Cir. 1969, 407 F.2d 53. But that is not the situation that now confronts us. For, as pointed out earlier in this dissent, the period within which McCullough’s valid sentence on Count 3 could be vacated or otherwise changed has long since run.
*553The error, as I see it, in the majority opinion lies in treating all three sentences as voidable, even after the originally valid sentence, for the offense that included the charged lesser offenses, had become final. I have considered the possibility of avoiding this conclusion by viewing the punishment originally imposed upon McCullough as a single defective sentence, correctible as an entirety in a way that will achieve the result originally intended. But here the indictment charged three distinct crimes in three separate counts and three consecutive sentences have been imposed for these three crimes. To deny that procedural actuality would be to reach for a desirable result through the instrumentality of a palpable fiction. Therefore, I am unable to escape the conclusion that we are confronted with three sentences, one valid and now unchangeable, the other two invalid and insalvageable.
The prisoner is, in my view, entitled to precisely the remedy he is seeking, relief from the two invalid sentences. I do not object to the method of sentencing proposed by the court for the avoidance of the problems of this case in the future.