Sanford v. King
| Citation | 136 F.2d 106 |
| Decision Date | 04 June 1943 |
| Docket Number | No. 10611.,10611. |
| Parties | SANFORD, Warden, v. KING. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellant.
No appearance was entered for appellee.
Before HUTCHESON and WALLER, Circuit Judges, and COX, District Judge.
The District Court for the Northern District of Georgia, under habeas corpus proceedings, ordered the petitioner, appellee here, discharged from the custody of the Warden of the United States Penitentiary at Atlanta, and the latter appeals.
On October 8, 1935, appellee pleaded guilty in the United States District Court for the Western District of Louisiana to a three-count indictment, charging violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408. He was sentenced on the first count to serve five years in the United States Penitentiary at Leavenworth, Kansas, the execution of which was to begin at the expiration of a sentence appellee was then serving in the State Penitentiary of Louisiana. The record further shows that "on the other counts of this bill of indictment, it was ordered that the imposition of sentence be suspended for a period of five years, conditioned upon his not again violating any other law, State or Federal, during said suspension". Upon the completion of the appellee's sentence in the State Penitentiary he entered upon the service of his Federal sentence on April 28, 1939.
Subsequently, and during the service of his Federal sentence, the appellee was charged with perjury alleged to have been committed on October 3, 1941, in a habeas corpus proceeding sued out by the petitioner while serving the Federal sentence in Atlanta, by reason of which charge of perjury the appellee was returned to the Western District of Louisiana for hearing upon motion for the revocation of probation. In this proceeding appellee pleaded guilty on April 7, 1942, to the violation of his probation, whereupon his probation and suspension of imposition of sentence were ordered revoked and he was sentenced to a term of two years on the second count of the indictment, which said sentence was to begin at the expiration of the sentence that the defendant was then serving in the Atlanta Penitentiary on the first count of the said indictment. It was further ordered that on the remaining third count of the indictment the imposition of sentence was suspended and the defendant placed on probation as of the date of the sentence.
Petitioner contends that he was sentenced first on October 8, 1935, and that imposition of sentence was suspended and he was put on probation on the second and third counts of the indictment for a period of five years, beginning as of the date of the sentence, and that he had completely served the probationary sentence of five years before the commission of the perjury on October 3, 1941, and that having served the maximum sentence permitted under the Act (five years under the first count), and having served said probationary sentence of five years before the commission of the perjury, his probation could not, therefore, be revoked and sentence imposed on the second count of said indictment. He maintains that the probationary period started on the date of the sentence, to-wit, October 8, 1935. The Warden contends that the probationary period should be held to have commenced on the day the petitioner was released from State custody, to-wit, April 28, 1939, for the reason that he could not have been put under Federal supervision during his custody in the State Penitentiary. The Warden further insists that under Section 709a, Title 18 U.S.C.A., the term of the sentence began to run on the date of commitment to the Federal Prison or on the date of commitment to jail awaiting transportation, and that in the absence of an express provision in the sentence to the contrary the date of the sentence of probation began on the date of entering upon service of the Federal sentence, in which event the probationary period would not have expired until April 28, 1944, or a date after the commission of the perjury.
The Warden further contends that the maximum period for which the defendant might originally have been sentenced was fifteen years, or five years under each of the three counts, which could have been made to run consecutively, and that under Section 725, Title 18 U.S.C.A. (Paragraph 2, Section 2 of the Probation Act), it is provided that:
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