Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
On June 9, 1941, a two count indictment was returned against petitioner in the United States District Court for the Western District of Louisiana, charging violations of 18 U.S.C.A. § 408 (Dyer Act). Upon a plea of guilty, sentence for a period of three years was imposed on count one, to run concurrently with a state sentence, petitioner was then serving at the Georgia State Penitentiary.Imposition of sentence on the second count was suspended and petitioner was placed on probation as of that date, "conditioned upon his not violating the terms and provisions of probation or any laws, state or federal, during the period of said suspension and probations," but no period of duration was specified in the judgment.
Petitioner was returned to the State Penitentiary of Georgia and while confined there also served the three year sentence imposed by the Louisiana Federal Court on count one, being conditionally released from the State Penitentiary on August 18, 1945. On November 26, 1946, more than three but less than five years after the date on which he was placed on probation, petitioner was brought before the sentencing court in Louisiana, charged with violation of the conditions of his probation. Upon a plea of guilty, the suspension of sentence was set aside, the order of probation revoked and a sentence of five years imposed on count two of the original indictment.
By this habeas corpus proceedings petitioner challenges the five year sentence, under which he is now being detained, contending that since the original judgment of the sentencing court did not specify the term of his probation, under the rule of definiteness and clarity usually applicable to criminal judgments, it must be presumed that the sentence of probation ran concurrently and conterminously with the three year sentence imposed upon the first count. Levine v. Hudspeth, 10 Cir., 127 F.2d 982; Subas v. Hudspeth, 10 Cir., 122 F.2d 85: Wall v. Hudspeth, 10 Cir., 108 F.2d 865. Upon this premise, it is argued that probation ended with the concurrent service of the three year sentence and the sentencing court was thereafter without authority to revoke the suspension of sentence and impose the five year sentence under which he is now confined.
The trial court did not decide whether active probation terminated with the service of the three year sentence on count one, since it was of the opinion that the sentencing court was authorized under the probation statute to revoke the suspension of sentence at any time during the maximum period for which he could have been sentenced on count two of the indictment, or at anytime within five years.
When it appears to the "satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby" the United States District Courts are empowered "after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; * * * The period of probation, together with any extension thereof, shall not exceed five years." 18 U.S.C.A. § 724. "* * * At any time within the probation period the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed." 18 U.S.C.A. § 725.
There is authority for the contention that the court is powerless to revoke probation for violations occurring after the period of active probation. Sanford v. King, 5 Cir., 136 F.2d 106. It is said that any other construction would render meaningless the five year limitations in the statute (18 U.S.C.A. § 724), and would break faith with the probationer, who is told in effect that if he lives up to the conditions of probation for the specified period he will then be a free man. But, the great weight of authority construes the statute to authorize the courts to supervise the probationer not only during the period of his active probation but for the term of the maximum sentence which might have been imposed. Frad v. Kelly, 302 U.S. 312, 58 S. Ct. 188, 82 L. Ed. 282, United States v. Moore, 2 Cir., 101 F.2d 56, certiorari denied 306 U.S. 664, 59 S. Ct. 788, 83 L. Ed. 1060; Scalia v. United States, 1 Cir., 62 F.2d 220; United States ex rel. Grossberg v. Mulligan, 2 Cir., 48 F.2d 93; Whitehead v. United States, 6 Cir., 155 F.2d 461; Hollandsworth v. United States, 4 Cir., 34 F.2d 423. Making application of this rule it has been held, on direct appeal from an order denying a motion to vacate, that failure to provide the conditions or to specify the period of probation, does not render the probation order invalid. Whitehead v. United States, supra. See also Archer v. Snook, D.C., 10 F.2d 567, Campbell v. Aderhold, D.C., 36 F.2d 366.
The courts all agree that it is the better policy to specify the conditions and period of probation but it is manifestly clear that whether the probation order be construed as granting probation for a period of three years, as contended, or for a lesser or longer period, the order is not void and subject to collateral attack in a habeas corpus proceedings.
The judgment is affirmed.
PHILLIPS, Circuit Judge (concurring)
18 U.S.C.A. § 724 authorizes the courts of the United States having original jurisdiction of criminal actions (except in the District of Columbia), after a conviction or plea of guilty or nolo contendere for any offense not punishable by death or life imprisonment, "to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best." It also authorizes the court, which has granted probation, to revoke or modify any condition of probation and to change the period of probation. But it expressly provides that "the period of probation, together with any extension thereof, shall not exceed five years."
After providing for the arrest of a probationer without a warrant within the probation period, 18 U.S.C.A. § 725 provides that "at any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court," and that "thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed."
Section 725, supra, further provides that "when directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the ...