No Authority for District Court to Stay Execution of Prison Sentence and Impose Probation

U.S. v. Prows, 2006 WL 1495017 (6/1/06) - As both parties agreed, the d.ct. did not have the authority to stay execution of the prison sentence and impose probation instead. The Sentencing Reform Act eliminated that procedure. The 10th remanded for the d.ct. to decide if it has the authority to impose probation. The government, as the appellant, did not fulfill its obligation to complete the record to show whether the defendant was convicted of an offense that was a Class B felony precluding probation or a Class D felony that permitted probation.

The d.ct. erred in dismissing the defendant's 2255 motion as premature. The government's appeal did not deprive the d.ct. of jurisdiction to address the 2255. The issues raised in the appeal and the 2255 are completely different issues. The 2255 motion was not defective due to the failure of the defendant's attorney to sign it because the public defender's appointment did not extend to the 2255.