This сase came before this Court for oral argument on December 2, 1996, pursuant to an order that directed both parties to appear and show cause why the issues raised by the defendant’s appeal from a Superior Court final judgment revoking the defendant’s probation should not be summarily decided.
Aftеr hearing the arguments of counsel and considering the memoranda submitted by the parties, we are of the opinion that cause has not been shown. The issues raised in the appeal will be decided at this time.
On May 21, 1986, the defendant, Kelvin Dantzler (defendant), pled nolo contendere to a charge of robbery. He was sentenced thereon to a term of twenty-five years, twelve of which he was to serve with the remaining thirteen years being suspended with probation. The trial justice specifically stated at the time of defendant’s sentencing that his probationary period was “to start when you are released from the A.C.I.”
On May 26, 1988, the defendant pled nolo contendere to another robbery charge and received a twenty-five year sentence with eighteen years to serve, seven year's suspended with seven years of probation. The sentencing justice at that time specifically informed the defendant that his probationary period was “to commence upon his release.”
On November 17, 1994, the defendant escaped from custody while on prison work release duty. While eluding the authorities, the defendant allegedly committed a sexual assault. Some six months later he was recaptured and on May 8, 1995, was arraigned on the sexual assault charge. At the same time, the defendant was presented as a violator of the probation previously imposed on his earlier 1986 and 1988 robbery charges.
At his violation hearing, the defendant contended that he could not have violated the terms of his probation bеcause he had not yet begun either of the probationary periods specified in his two robbery charge sentences, both of which were specifically ordered by the sentencing justice to begin after his lawful release from the Adult Correctional Institutions (ACI), after the completion of his prison sentences. Relying on that contention, the defendant moved to dismiss the state’s Super.R.Crim.P. 32(f) notice of probation violation. That motion was denied on June 9,1995. The defendant then moved for permission to withdraw his nolo contendere pleas entered on the two earlier robbery charges because, he аsserted, he pled to them without any knowledge that he could be presented as a violator of the probation portion of his sentences prior to his being released from his incarceration at the ACI. His motion to withdraw his earlier pleas was also denied. Following a probation violation hearing held on September 25 and 26, 1995, the defendant was then found to have violated the terms and conditions of his probation. His suspended sentences were then vacated, and he was remanded to the ACI. The defendant appeals from the Superior Court trial justice’s probation violation finding and sentencing thereon.
Although it appears that G.L.1956 § 12-19-8 vests a sentencing justice with the authority to fix when the period of a defendant’s probation is to commence,
Gonsalves v. Howard,
Section 12-19-9, which permits the revocation of a defendant’s probation, provides that
In
Stafford v. State,
“The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. Cf. McNeely v. State, Fla.App. 1966,186 So.2d 520 . Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, Bronson v. State, 1941,148 Fla. 188 ,3 So.2d 873 , which may be exercised at anytime [sic] upon the court determining that the probationer has violated the law. State ex rel. Roberts v. Cochran,140 So.2d 597 (Fla.1962). Under the exercise of such inhеrent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.”455 So.2d at 386 (quoting Martin v. State,243 So.2d 189 , 190-91 (Fla.Dist.Ct.App.), cert. denied,247 So.2d 63 (Fla.1971)).
Additionally, the court in
Commonwealth v. Miller,
“[t]o suggest, as appellant doеs, that a defendant is free to commit unlimited additional crimes without in any way impairing or endangering a previously imposed sentence of probation merely because the probationary period has not commenced is to suggest an absurdity in the statute which this Court is not prepared to create. Indeed, such an interpretation would be contrary to the policy and the purposes to be served by probation. If a probationer’s criminal conduct, even if committed prior to commencement of the probationary period, discloses that probation will not be in the best interests of the public or the defendant, a court may revoke or change the order of probation. The commission of a new crime violates an implied condition of probation and suggests that the defendant is a poor probation risk.” Id.,516 A.2d at 1265 (citing Commonwealth v. Motion,267 Pa.Super. 163 ,406 A.2d 569 , 571 (1979)).
Furthermore, in
State v. Sullivan,
Especially relevant to the appeal before us are the decisions
Brown v. Commonwealth,
In response to the defendant’s argument that his suspended sentence could not be revoked because it had not yet commenced, the court in
Brown
explained that “[probation is recognized as a privilege rather than a right. It is entirely within the trial court’s discretion whether a defendant is given his liberty conditionally.”
In Layson, the defendant entered a guilty plea to four burglary charges brought against him. He was sentenced to fifteen years, six to be served with nine years of probation. His sentences on the three other counts of burglary were to run concurrent with the sentence on the first burglary charge.
While serving his six years, the defendant escaped. He eventuаlly was recaptured and entered a guilty plea to the escape charge. The court concluded that there was nothing in the Georgia statute that prevented “the revocation of the probated portion of a sentence based upon a separate crime committеd during the portion of the sentence to be served in confinement.”
Layson,
The aforementioned two cases are highly relevant to the facts before us since the defendant entered pleas of nolo contendere to two different robbery charges and was sentenced to terms that included probation. He later escaped while serving the confinement portion of his sentences. His argument now, claiming that his probationary term could not be revoked because he was serving only the confinement portion of his sentences and that the probation portion of his sentences had not yet commenced, has been previously posed and refuted in
Jacques
as well as by practically all courts that have considered the same contention.
See also Vogel v. State,
Moreover, we conclude that no due process violation is evident from the record before us that would justify the defendant’s request to withdraw his earlier pleas on the basis that they were not knowingly made. The statute pursuant to which the defendant’s probation was revoked, § 12-19-9, clearly indicates that such revocation could occur whenever he was placed on probation pursuant to § 12-19-8 and violated the terms and conditions of that probation. Nоthing in § 12-19-9 indicates that his probation could be revoked only after the commencement of the specific period of probation noted by the sentencing justice. We refuse to read that limitation into our statute. That statute, which is both clear and unambiguous on its face, serves as adequate notice to any defendant who is placed on probation that any act committed by him or her that is in violation of the terms or conditions of his or her probation can result in the revocation of his or her probation. Accordingly, we conclude that no due process violation occurred below because § 12-19-9 served to put the defendant on notice that his probation could be revoked at any time “whenever” he violated any term or condition of his probation.
Despite the fact that the trial justice specifically stated that the defendant’s probationary term was to commence upon his official release from prison, the defendant was notwithstanding subject to, as part of his probationary sentence, an implied condition of good behavior that attached to the total length of his sentence at the time sentence was imposed and which permitted the trial justice after proper hearing to revoke his probation while he was on escaped status from the ACI. The trial justice, after conducting the required hearing and reviewing the evidence before him, found that the defendant had violated his probationary period’s implied condition of good behavior by сommitting a sexual assault while unlawfully out of custody. We find no error in that finding.
For the foregoing reasons, the defendant’s appeal is denied and dismissed, the judgment appealed from is affirmed, and the papers in this case are remanded to the Superior Court.
Notes
. A defendant is placed on probation pursuant to G.L.1956 § 12-19-8 when a sentence is imposed. Notably, the language of § 12-19-9 does not refer to the commencement of probation, only its imposition.