Roberts v. United States

• Decision Date: 16 January 1943
• Docket Number: No. 10375.,10375.
• Citation: 131 F.2d 392
• Parties: ROBERTS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

131 F.2d 392 (1942)

ROBERTS v.UNITED STATES.

No. 10375.

Circuit Court of Appeals, Fifth Circuit.

November 24, 1942.

Rehearing Denied January 16, 1943.

Jasper Newton Powell, of Hartselle, Ala., for appellant.

Jim C. Smith, U. S. Atty., and Jack H. McGuire, Asst. U. S. Atty., both of Birmingham, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

In April, 1938, the appellant, Frank Roberts, pleaded guilty to charges of stealing goods from an interstate shipment, and of possessing such goods knowing the same to have been stolen, all in violation of 18 U. S.C.A. § 409.He was fined $200 and sentenced to serve a term of two years in the penitentiary.The fine was paid, and the court suspended the execution of the sentence and placed Roberts on probation for five years under the provisions of the Probation Act, 18 U.S.C.A. § 724.At a subsequent term of court in June, 1942, after a hearing the court revoked the probation, set aside the suspended sentence of two years, and imposed a sentence of three years in the penitentiary.The three years' sentence was one that might originally have been imposed, the maximum sentence under each count being ten years.

Appellant contends that the trial court was without power to revoke the two years' suspended sentence and then impose a longer sentence of three years.Decision turns upon the construction of the statute relating to revocation of probation, 18 U.S. C.A. § 725: "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."

The statute thus clearly gives to the trial court the power to revoke the probation or the suspension of sentence and to then impose any sentence which might originally have been imposed.This court in United States v. Antinori, 5 Cir., 59 F.2d 171, construed the probation statute to provide for retention of the trial court's jurisdiction beyond the judgment term, and upheld the action of the lower court in revoking the original suspended sentence and imposing a new sentence for a shorter term.The court, however, expressly refrained from deciding whether the trial court could, upon revocation of the probation and suspended sentence, impose a new sentence for a longer term.Also seeScalia v. United States, 1 Cir., 62 F.2d 220.In a later case, Remer v. Regan, 104 F.2d 704, the Circuit Court of Appeals for the Ninth Circuit, upheld the imposition of an increased sentence upon violation and revocation of probation.The court held that revocation of a two years' suspended sentence and imposition of a sentence of imprisonment for three years was authorized by the act and did not constitute double jeopardy under the Fifth Amendment to the Constitution.This decision is in harmony with the opinion of the Circuit Court of Appeals for the Second Circuit in United States v. Moore, 101 F.2d 56, certiorari denied, 306 U.S. 664, 59 S.Ct. 788, 83 L.Ed. 1060.We agree with the holding in Remer v. Regan, supra, that imposition of the increased sentence did not constitute double jeopardy, and that "Under the probation act an increase of sentence is expressly authorized by the statute(18 U.S.C.A. § 725) and, consequently, it is potentially a part of the original sentence."104 F.2d 705.

Under the express terms of the Probation Act, § 725, payment of a fine, or the making of restitution or reparation to aggrieved parties, may be made the condition of probation.We do not think that the payment of the $200 fine in the case at bar constituted such a partial execution of sentence as would defeat the court's power to grant probation, or to revoke the suspended sentence and impose a new sentence of imprisonment "which might originally have been imposed".The facts of this case do not measure to infraction of the constitutional limitations discussed in Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; or United States v. Benz, 282 U.S. 304, at page 307, 51 S.Ct. 113, 75 L.Ed. 354.Cf.United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309.

The judgment is affirmed.

HOLMES, Circuit Judge (dissenting).

In United States v. Antinori, 5 Cir., 59 F.2d 171, this court held that in revoking a suspended sentence the district court might impose a new one for a reduced...