588 F.2d 1288 (9th Cir. 1979), 77-1990, United States v. Clayton

Docket Nº:77-1990.
Citation:588 F.2d 1288
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sandra CLAYTON, Defendant-Appellant.
Case Date:January 04, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1288

588 F.2d 1288 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,


Sandra CLAYTON, Defendant-Appellant.

No. 77-1990.

United States Court of Appeals, Ninth Circuit

January 4, 1979

Page 1289

William W. Graham, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

David R. Hinden, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and CHAMBERS, Circuit Judges, and WOLLENBERG [*], District Judge.

WOLLENBERG, Senior District Judge.

This is an appeal from a district court judgment revoking probation of defendant-appellant and ordering execution of her original sentence of imprisonment. Sandra Clayton pleaded guilty to one count 1 of possessing counterfeit government obligations as proscribed by 18 U.S.C. § 472. She was sentenced on October 7, 1974, to six years imprisonment. However, pursuant to 18 U.S.C. § 3651, it was ordered that appellant serve the first ninety days of her sentence on consecutive weekends in a jail-type institution. The balance of the six-year sentence was suspended, and she was placed on five years probation on the following conditions: that she "(1) obey all laws, Federal,

Page 1290

State and local; (2) comply with all the rules and regulations of the Probation Officer; and (3) keep and maintain the order of the Court with respect to the jail-type sentence imposed." Record at 7.

Clayton satisfactorily served twelve consecutive weekends (twenty-four days) of imprisonment. 2 On March 15, 1975, she failed to appear for a weekend of incarceration at the Los Angeles County Jail, and probation revocation proceedings were commenced pursuant to 18 U.S.C. § 3653. At the probation revocation hearing held on June 2, 1975, the district court vacated its order of October 7, 1974, and ordered that the originally imposed six-year sentence be executed. Then the court, referring again to 18 U.S.C. § 3651, ordered that appellant serve the first six months of her sentence in a jail-type institution. The balance of the sentence was suspended, and she was placed on probation for five years on condition that she "obey all laws, Federal, State and local and comply with all the rules and regulations of the Probation Officer." Record at 13. In its written judgment revoking probation, the court made no mention of granting appellant credit for the twenty-four days she had already served.

Clayton satisfactorily completed six months of imprisonment. Subsequently on three different occasions in 1976, she pleaded guilty to petty theft in Los Angeles Municipal Court in violation of Cal.Penal Code § 484 and was sentenced by that court. Record at 15. Probation revocation proceedings were set in motion again by a petition filed on June 26, 1976. Appellant opposed these efforts by filing a motion to dismiss the probation revocation petition and to be discharged from custody on essentially the same grounds as argued on this appeal. At the probation revocation hearing, held on December 13, 1976, appellant's motion was denied, and the two previous probation orders were vacated. It was ordered the "further execution" of Clayton's previously imposed six-year prison sentence be carried out. Record at 26. Appellant is now serving that sentence.

Appellant claims that the court's order of December 13, 1976, revoking probation and reinstating the six-year prison sentence, was invalid because she was not legally on probation at the time she allegedly violated that probation by committing three petty thefts. She contends that she was...

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