148 F.2d 923 | 5th Cir. | 1945
Field under sentences
To the first contention, the Government replies that the statute limits probation to five years, and, therefore, the provision in the probation order for ten was without effect on the otherwise valid judgment, and, further, that the judgment of suspension and probation was revoked within the statutory period of five years after it commenced.
To the second contention, the Government replies that the offenses for which he was convicted were separate offenses
We agree with the Government. It is quite plain that appellant was charged with, and convicted of, separate and distinct offenses, and that he could have been sentenced to an aggregate term of fifteen years for their violation. It is quite plain,, too, that nothing is shown which in anyr wise impeaches the judgment and sentence entered March 5, 1943, on which he is now held- It may not any longer be doubted, though it once was,
All that appears in respect of the sentence complained of is: (1) that the defendant stood before the court for sentence on two indictments, consolidated for trial, carrying an aggregate maximum punishment of fifteen years; (2) that he was sentenced on one of the indictments, No. 8506, to serve five years; (3) that on the other, No. 8507, in accordance with established practice, Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282, the imposition of sentence was suspended, and he was placed on probation to commence after the service of the first five year sentence; (4) that within the period of probation so fixed, and upon his plea of guilty to its violation,
Taken from the transcript of the record which is not complete, as supplemented by the briefs of appellant and the United States, those are the facts:
On February 11, 1988, appellant appeared before the trial court and pleaded guilty to two indictments which had been consolidated for trial, No. 8500 and No. 8507. On Indictment No. 8507, charging violation of Title 18 U.S.O.A. § 415, National Stolen Properly Act, defendant was sentenced to five years imprisonment effective under Sec. 709a, 18 U.S.O.A., “as of defendant’s receipt at the penitentiary or jail for service of the sentence.” On Indictment No. 8506, charging violation of Title 18 U.S.O.A. § 408e, Unlawful Flight Act, the imposition of sentence was suspended and “defendant was ordered placed on probation after serving sentence imposed in No. 8507, conditioned upon his not again violating any law, state or federal, during the period of said suspense and probation, which period is for the term of ten years”. It was further provided, “The probation is to begin when the said defendant has served the term imposed in cause No. 8507.”
After serving a portion of the penitentiary term, appellant was, on Sept. 11, 1941, released on parole, and while at liberty thereunder was, on Jan. 14, 1943, arrested by state officers for robbery and possession of stolen property. Because of this, his parole was revoked and he was returned to the penitentiary to serve the balance of his sentence.
Cf. Wells v. United States, 5 Cir., 124 F.2d 334; Holbrook v. United States, 8 Cir., 136 F.2d 649; Miller v. United States, 2 Cir., 147 F.2d 372.
Barrow v. Owen, 5 Cir., 89 F.2d 476; United States v. Bruce, D.C., 52 F.Supp. 150; United States v. Miller, D.C., 17 F.Supp. 65; Jackson v. United States, 8 Cir., 131 F.2d 606.
Cf. United States v. Bruce, D.C., 52 F.Supp. 150.
Holiday v. Johnston, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392; Miller v. United States, 2 Cir., 147 F.2d 372.
DeBenque v. United States, 66 App.D.C. 36, 85 F.2d 202, 108 A.L.R. 839; Miller v. United States, 2 Cir., 147 F.2d 372.
Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266.