opinion: UNITED STATES of America, Plaintiff-Appellee, v. Charles Stewart SCARDINO, Defendant-Appellant.
  No. 27171.
  United States Court of Appeals Fifth Circuit.
  Aug. 14, 1969.
  Paul C. Myers, Atlanta, Ga., for appellant.
  Allen L. Chancey, Jr., Acting U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for appellee.
  Before COLEMAN and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.
  COLEMAN, Circuit Judge:
  On April 4,1966 Charles Stewart Scar-dino was indicted in the Northern District of Georgia for the sale of 156.2 grams of marihuana in violation of § 4742(a), and for the acquisition of the marihuana without, as a transferee, paying the tax required by § 4741(a), in violation of § 4744(a) Title 26, United States Code. On May 6, represented by counsel, a plea of not guilty was entered. On July 18 the plea of not guilty was withdrawn and a plea of guilty was entered to Count 2. Count 1 was dismissed (July 26). On July 18 Judge Sidney Smith entered judgment, inter alia, “It is adjudged that the imposition of sentence on the said defendant be, and the same is hereby suspended until the further order of the Court, and that he be placed upon probation for the period of three (3) years.”
  On June 7, 1968 Scardino went to Arizona and from there to California without the permission of his parole officer, which was a violation of the terms of his probation. On September 14, 1968, he was arrested in California and entered a plea of guilty to battery. He was sentenced to serve thirty days but since he had already been in jail for thirty eight days the sentence was suspended.
  On December 3, 1968 a motion was filed to revoke probation. The hearing was held before Judge Albert Henderson on December 20. The defendant was in custody and was represented by counsel of his own selection. That same day Scardino filed a motion to vacate and set aside his conviction, 28 U.S.C. § 2255, on the ground that §§ 4741(a) and 4744(a) of Title 26 were unconstitutional since the possession of marihuana is a felony in Georgia [Ga.Code, § 42-803].
  Judge Henderson revoked probation and sentenced Scardino to the custody of the Attorney General for two years. Scardino has appealed both the revocation of probation and the denial of his § 2255 motion to vacate.
  The appeal was argued before this Court in Atlanta on May 27,1969.
  When the hearing opened before Judge Henderson, Counsel for Scardino called attention to the § 2255 motion and explicitly stated that he was relying on the decisions of the Supreme Court in the Marchetti and Grosso cases for the proposition that §§ 4741(a) and 4744(a) were, by the same reasoning, unconstitutional. The government pointed out that this Court had upheld these statutes in Leary v. United States, decided September 29, 1967, 383 F.2d 851. Counsel for Scardino stated that if stare decisis had any meaning the Supreme Court, in the light of Marchetti and Grosso, would have no alternative but to reverse Leary. Counsel asked the Court to defer action until the Supreme Court decided Leary, which was then on certiorari. The Court stated that until the Fifth Circuit was reversed he was bound by its decision and added, “If the Supreme Court reverse that, then we will have to do some reversing”. He proceeded with the hearing, with the results already indicated.
  On May 19, 1969 the Supreme Court did reverse the Fifth Circuit and invalidated the statutes here in question, Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
  Counsel for the government argues here that the Supreme Court has given no retrospective application to Leary, which is true; that Seardino pleaded guilty without challenging the validity of §§ 4741(a) and 4744(a), that he thus waived the point; and the sentence should stand.
  The issue, however, is not that simple. We are now confronted with the matter of committing a man to prison on a charge which is constitutionally invalid. The Judgment of July 18, 1966 suspended the imposition of sentence until further order of the court. The order imposing that sentence has not been executed pending the outcome of this appeal. When Seardino pleaded guilty Judge Smith did not consider that the imposition of a prison sentence was then warranted. Finally, Judge Henderson indicated, as above, that he was imposing sentence because he was bound by our decision in Leary, later reversed. In any event, he did not use the practice often applied in this Court of suspending action on cases involving issues pending decision in the Supreme Court.
  Aside from the discretion to defer judgment pending the decision of an issue on which certiorari has been granted, the District Court was clearly right in applying existing law. But the law has been changed before the case reached us on appeal.
  The principles announced by the Supreme Court in the Leary case, supra, are to be given prospective application. It, therefore, affords no relief to those Who were finally convicted and had exhausted the direct appellate process prior to May 19, 1969.
  The principles announced in a case of prospective application, however, are to be applied to convictions which were not final when the Supreme Court decision was rendered, O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966).
  A federal appellate court is bound to consider any change, either in fact or in law, which has supervened since the entry of the judgment appealed from, 28 U.S.C.A. § 2106, Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964).
  It is true the Scardino’s conviction was final when he entered his plea of guilty in 1966. His sentence, however, was not final. None was imposed. It was suspended pending the further order of the court. That further order is the subject of this appeal. We can only conclude that in this posture of the case to require Seardino now to go to prison for two years would be patently unconstitutional.
  Scardino’s failure to plead unconstitutional self incrimination in 1966 makes no difference, see the decision of the Supreme Court in Leary v. United States, supra.
  The Judgment of the District Court is reversed and remanded, with directions that the indictment be dismissed.
  . Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, January 29, 1968; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, January 29, 1968. See also Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (Another case in which the Judgment of the Fifth Circuit was reversed).
  . Certiorari was granted June 10, 1968, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362.
  . See, also Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924); Ziffren, Inc. v. United States, 318 U.S. 73, 63 S.Ct. 456, 87 L.Ed. 621, rehearing denied 318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163 (1943); Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1964); Pearson v. United States, 5 Cir., 1968, 389 F.2d 684; McCloskey & Company v. Eckart, 5 Cir., 1947, 164 F.2d 257.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.