U.S. v. O'Quinn, 82-5145
| Citation | 689 F.2d 1359 |
| Decision Date | 25 October 1982 |
| Docket Number | No. 82-5145,82-5145 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ludwell E. O'QUINN, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Joseph A. Varon, Varon & Stahl, Hollywood, Fla., for defendant-appellant.
Edward B. Galante, Jon May, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, JOHNSON and HATCHETT, Circuit Judges.
On November 17, 1977, appellant Ludwell E. O'Quinn pleaded guilty to a charge stating that he had transferred and delivered counterfeit obligations with the intent to pass and publish them in violation of 18 U.S.C.A. §§ 472 & 473. He was given a suspended sentence of two years in prison and was placed on probation for three years.
On November 1, 1980, the district court, acting on a petition from a probation officer charging O'Quinn with a violation of the terms of his probation, ordered a warrant to be issued against O'Quinn but to be held in abeyance pending O'Quinn's appearance at a probation revocation hearing. The probation officer charged that O'Quinn had been arrested by police on August 25, 1980, and had been charged with conspiracy to deliver more than 100 pounds of marijuana. The probation officer later filed a second petition repeating, with a corrected date of August 23, 1978, the charge in the initial petition and adding two other charges alleging that O'Quinn had continued to associate himself with persons involved in criminal activity. The court, on July 3, 1981, again ordered O'Quinn to appear at a probation revocation hearing. After the hearing the court revoked O'Quinn's probation and ordered him to serve the remainder of the two year sentence that the court originally had imposed.
O'Quinn raises several questions on appeal. He begins by charging that the second petition supplanted and signified the abandonment of the first petition. Since the second petition was filed after his period of probation had ended, he concludes that the court had no jurisdiction to revoke his probation.
We reject O'Quinn's argument. Federal law explicitly provides that . 18 U.S.C.A. § 3653 (emphasis added). Other circuits have followed the statute's clear language and have held that a court can issue a warrant and revoke an individual's probation at any time during the maximum five year probationary period permitted by 18 U.S.C.A. § 3651 so long as the acts causing the revocation occur within a probationer's period of probation. United States v. Basso, 632 F.2d 1007, 1012 n.5 (2d Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67...
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