Driver v. United States, 7188.

• Decision Date: 23 April 1956
• Docket Number: No. 7188.,7188.
• Citation: 232 F.2d 418
• Parties: Lawrence Ingram DRIVER, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

232 F.2d 418 (1956)

Lawrence Ingram DRIVER, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 7188.

United States Court of Appeals Fourth Circuit.

Argued April 9, 1956.

Decided April 23, 1956.

Herndon P. Jeffreys, Jr., Richmond, Va., for appellant.

Edwin J. Slipek, Asst. U. S. Atty., Richmond, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., and James R. Moore, Asst. U. S. Atty., Richmond, Va., on the brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and PAUL, District Judge.

PAUL, District Judge.

The record in this case discloses the following facts: On April 26, 1954, a criminal information was filed against the appellant in the Eastern District of South Carolina charging him with violation of Section 659, Title 18 United States Code Annotated, the particular offense being the theft of a box of candy from an interstate shipment. On the same date he entered a plea of guilty to the charge and the Court entered an order which, after reciting his conviction upon his plea, proceeded in the following language.

"It is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year.

"It is Adjudged that the above sentence be suspended and that the defendant be placed on probation until he secures satisfactory employment." (Emphasis supplied.)

The appellant who, apparently, was a resident of Richmond, Virginia, returned to that city on April 27, 1954, the day after the entry of the above noted order, and at once reported to the probation officer in that city. Presumably this was with the permission and at the direction of the South Carolina court. At a later date a formal order was entered transferring jurisdiction over the probationer to the Eastern District of Virginia.

After the appellant had returned to Richmond the court for the Eastern District of South Carolina, on April 28, 1954, entered an order in the following words:

"On the 26th day of April, 1954, Lawrence Ingram Driver, Jr. entered a plea of guilty to violation of Title 18, Section 659, U.S.Code. He was sentenced to the custody of the Attorney General for a period of one (1) year, sentence suspended and placed on probation until he secures a satisfactory job.

"It now appearing to the Court that it is advisable to change the above sentence, it is hereby

"Ordered that the following sentence be imposed:

"That imposition of sentence be suspended and he be placed on probation for a period of five (5) years."

The record does not disclose just when a copy of the order of April 28th was sent to the Eastern District of Virginia. Nor does it reveal whether the appellant ever received a copy of this second order; the indications are that he did not, but that its provisions were discussed with him by the probation officer.

Shortly after returning to Virginia on April 27, 1954, the appellant obtained employment with the Richmond Dairy Company as a route salesman. However after several weeks at this job his employer learned of his criminal conviction and, since the position required that he be bonded and the bonding company, in view of his record, declined to bond him, his employer had to let him go. Following this and after talking things over with the probation officer he secured another job with an employer to whom he disclosed, or who may already have known of, his conviction in South Carolina. This job, which was with the Richmond Abattoir, lasted about a month, when he was laid off. There is nothing to indicate that the termination of this employment was due to any fault of the appellant. Subsequently he obtained work with a roofing contractor and still later with a manufacturer. Just how long he held each of these last two jobs is not made clear, although it does appear that he was working in the latter position as late as March, 1955. Neither is it clear as to the reasons why the employment in each instance was terminated, although there is a suggestion that it was because his work was not satisfactory.

In October, 1955, the appellant was convicted in the State Court on a charge of larceny and sentenced to three months in jail. As a result of this he was charged with a violation of his probation and on the expiration of the state sentence he was brought before the Judge of the United States District Court at Richmond on January 26, 1956, for a hearing on the question of revoking his probation. At this hearing the appellant was represented by court-appointed counsel, who continues to represent him on this appeal.

The argument which counsel offered in opposition to a revocation of probation is not included in the record of the hearing, but it would appear that the ground upon which he primarily relied was that the acts charged as violations of probation had occurred after the expiration of the period of probation; the contention being that the order entered April 28th, 1954, by the court in South Carolina was void, and that under its order of April 26th the period of probation was limited to not more than one year, the length of the suspended sentence.

As a result of the hearing the District Judge, after pointing out that the order of April 28th, 1954, which undertook to place the appellant on probation for five years, had the effect of modifying the sentence previously imposed and that it had been entered in the absence of the appellant, held it void for that reason.

The District Judge then proceeded to consider the effect of the original sentence embodied in the...