Sumpter v. U.S.

• Decision Date: 24 August 1989
• Docket Number: No. 86-332.,86-332.
• Parties: Kevin H. SUMPTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

564 A.2d 21

Kevin H. SUMPTER, Appellant, v. UNITED STATES, Appellee.

No. 86-332.

District of Columbia Court of Appeals.

Submitted December 15, 1988.

Decided August 24, 1989.

Michael J. McCarthy, Washington, D.C., appointed by this court, was on the brief for appellant.

Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, Helen M. Bollwerk, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before ROGERS, Chief Judge, and MACK and STEADMAN, Associate Judges.

MACK, Associate Judge:

This is an appeal from an order revoking appellant's probation. The appellant, Kevin Sumpter, asserts that the trial court was without authority to take such action, as his probationary term had already expired. We agree and reverse.

I.

On January 19, 1984, subsequent to a plea of guilty to unauthorized use of a motor vehicle, Sumpter was placed on probation for eighteen months under section 5010(a) of the Federal Youth Corrections Act.¹ His probation was thus due to expire on July 18, 1985. While still on probation, however, Sumpter was arrested in Maryland and entered an Alford plea² there to the charge of assault with intent to maim. Although the alleged offense occurred in September 1984, and the conviction entered the following May, Sumpter's probation officer did not learn of it until early August 1985, shortly after Sumpter's probationary term had expired.³ Erroneously believing that appellant's probation was not scheduled to end until August 18, the probation officer called Sumpter in to speak about this incident and notified the trial judge, who, on August 15, 1985, issued an order directing appellant to show cause why his probation should not be revoked and ordered that appellant's probation be "extended" by ninety days. At a subsequent hearing on revocation, the trial judge found that appellant had affirmatively concealed his criminal offense by falsely answering "no" when asked by his probation officer, subsequent to his apprehension in Maryland, if he had been arrested since their last meeting;⁴ the trial court held that such concealment estopped Sumpter from asserting lack of jurisdiction. Appellant's probation was ultimately revoked in January: 1986, with execution of the sentence stayed pending appeal.⁵

II.

A.

D.C.Code § 24-104 (1988 Supp.) provides as follows:

Upon the expiration of the term fixed for such probation, the probation officer shall report that fact to the court, with a statement of the conduct of the probationer while on probation, and the court may thereupon discharge the probationer from further supervision, or may extend the probation, as shall seem advisable.

At any time during the probationary term the court may modify the terms and conditions of the order of probation, or may terminate such probation, when in the opinion of the court the ends of justice shall require, and when the probation is so terminated the court shall enter an order discharging the probationer from serving the imposed penalty; or the court may revoke the order of probation and cause the rearrest of the probationer and impose a sentence and require him to serve the sentence or pay the fine originally imposed, or both, as the case may be, or any lesser sentence. If imposition of sentence was suspended, the court may impose any sentence which might have been imposed. If probation is revoked, the time of probation shall not be taken into account to diminish the time for which he was originally sentenced.

(Emphasis added.) The appellant argues that this provision means just what it says: that it is only during the probationary term that a court may revoke probation. The government, on the other hand, contends that this is too literal a reading of the statute and does not allow for the flexibility necessary in the probation context.

We have, in the past, construed the jurisdictional aspect of § 24-104 liberally and broadly. Thus, where the trial court has taken virtually any formal action to initiate revocation proceedings, or to extend the probationary period, prior to the expiration of probation, we have held this to be sufficient to provide the court with jurisdiction to complete the revocation proceedings, even after the probationary term would have otherwise ended. Wallace v. United States, 475 A.2d 401 (D.C. 1984) (ex parte order entered seven days before expiration of probationary term sufficient to temporarily extend probation period); Dent v. District of Columbia, 465 A.2d 841 (D.C. 1983) (issuance of rule to show cause sufficient to toll expiration of probation); Cooper v. United States, 48 A.2d 771 (D.C. 1946) (periodic formal extensions by the trial court kept probation alive). Nonetheless, we have consistently required that some such act be completed by the trial court prior to the expiration of the probationary term, and underlying this requirement has been an understanding that without such an affirmative act within the term of probation, the court's jurisdiction to revoke probation must, under the plain terms of the statute, end upon its expiration. See Jones v. United States, 560 A.2d 513, 515-16 (D.C. 1989).

Nor, contrary to the government's assertion, is this court's decision in Wright v. United States, 315 A.2d 839 (D.C. 1974), inconsistent with this proposition. In Wright, the court sentenced the defendant to six months incarceration with work release (the remainder of the sentence to be suspended), to be followed by one year probation; when the defendant failed to return the first night to the halfway house to which he had been assigned, the trial court revoked the probation which was to follow. In this context, this court held that the "probationary term" begins, for purposes of revocation, when probation is granted, and thus the trial court need not wait until the day the defendant actually begins serving his probation before being able to revoke it. This was, and is, a sensible interpretation of the statute: it is not stretching the phrase "during the probationary term" too far to include the initial time from which the probationer is under court supervision, either serving or awaiting probation. It is another matter, however, to assert that the court may continue to act after the probationary term set at sentencing has ended, when the court's supervision would normally have expired. Indeed, the Wright court itself expressly noted that "the outward limitation on the time for revocation of probation is the discharge of the probationer." Id. at 841 n. 6; cf. Maleng v. Cook, ___ U.S. ___, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (holding that, for purposes of habeas corpus, respondent was not "in custody" under conviction where sentence imposed for that conviction had fully expired, although respondent was "in custody" under convictions for which he had not yet begun to serve sentences).

Thus, today we make explicit what has previously been implicit in our decisions and hold that, under D.C.Code § 24-104, a trial court cannot revoke probation after the expiration of the probationary term originally imposed, unless the court extends the period of probation, or otherwise acts to preserve its jurisdiction. during the probationary term.

B.

Conceding that this principle undergirds our previous decisions, the government nonetheless urges this court to create an exception to any general rule prohibiting revocation after the scheduled expiration of probation where the probationer "affirmatively conceals" a probation violation from his probation officer. We decline to do so.⁶

Although we are aware that probation statutes "necessarily must lend themselves to flexibility," Wright, supra, 315 A.2d at 841, we find no principled basis, either in the words of the relevant statute or in our case law, for the invention of a "concealment exception" to the jurisdictional requisites for probation revocation. We reiterate what we have stated above: that § 24-104 is clear in its requirement that revocation occur only "during the probationary term," and that our decisions applying this provision have uniformly found jurisdiction only where the trial court initiated revocation proceedings, or acted to preserve its authority to do so, prior to the expiration of the probationary term.⁷ If an exception to the statute is thought desirable, it is for the legislative branch, and not the judiciary, to fashion one. Cf. D.C.Code § 23-113(f) (1988 Supp.) (creating an exception to the criminal statute of limitations where person found to be "fleeing from justice").

Nor can we hold that appellant's conduct worked to estop him from asserting the court's lack of authority to revoke probation. The statutory requirement that revocation occur during the probationary term is jurisdictional in nature, and so cannot be waived by estoppel.⁸ See Customers Parking, Inc. v. District of Columbia, 562 A.2d 651, 653-54 (D.C. 1989). See generally 13 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE § 3522 (1984).

Accordingly, the order of the trial court is

Reversed.

STEADMAN, Associate Judge, dissenting:

The trial court here made an explicit finding that the government proved by a preponderance of the evidence that Sumpter had affirmatively concealed the fact of his rearrest and subsequent conviction while on probation.¹ I believe the trial court was correct in its view that this act of concealment permitted a revocation of probation on the facts here.

As the majority indicates, our case law has "liberally and broadly" construed the time limit imposed by § 24-104. In Dent v. United States, 465 A.2d 841 (D.C. 1983), we held that no formal order of extension was required "to toll the expiration of the probationer's term" if appropriate steps were taken by the trial court prior to the term expiration date "to put the probationer on notice that probable cause exists for revocation of probation." Id. at 843. In my view, the active concealment...