GERALD LAYTON LAVELL, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that the judgment must be vacated because it incorrectly stated the offenses for which the defendant was convicted, and the sentence for one count exceeded the statutory limit.
The defendant was convicted under one conspiracy count and one substantive count, not two conspiracy counts as stated in the judgment. The sentence fo…
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PER CURIAM.
The judgment is vacated for the reason that it incorrectly states the offenses for which Lavell was convicted. The indictment and the jury verdict clearly indicate that defendant was convicted under one conspiracy count and under one substantive count; not two conspiracy counts.
We find the trial court did not abuse its discretion in refusing to grant a continuance and that its remarks during the course of the trial were not prejudicial to appellant.
The sentence as to count one (upon which the evidence must be admitted to be adequate) is clearly above the limit permitted by 18 U.S.C. § 371. We do not reach the question of adequacy of the evidence on count three. Normally, under Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, if the concurrent sentences were within permissible limits, one good count would result in affirmance.
Upon resentencing, the court can eliminate the objection that defendant was not expressly offered new counsel. At this time, we do not pass on the point.
We cannot agree with appellant that a new trial is required.
The case is remanded to the district court.