Tiller v. State
| Decision Date | 04 August 1969 |
| Citation | 257 A.2d 385 |
| Parties | Edward A. TILLER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Don M. Kerr, Wilmington, for defendant below, appellant.
Francis A. Reardon, State Prosecutor, and Jerome O. Herlihy, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.
This appeal questions the authority of the Superior Court to impose a sentence for violation of probation after the probation period expired.
The chronology of events is important:
On April 7, 1967, the Superior Court imposed upon the appellant, Edward A. Tiller, a sentence of two years' imprisonment for unlawful entry. Execution of the second year of the sentence was suspended, however, and the appellant was placed on probation for that period. On November 23, 1967, the appellant completed the one year imprisonment and was released from custody to commence his one year of probation. On July 3, 1968, he was arrested on a warrant issued at the request of the Probation Officer for violation of probation. Because of the absence of the Probation Officer and other circumstances, the hearing was not held until September 13, 1968, at which time the Court extended the probation period for a period of three months, i.e., to December 12, 1968, or 19 days beyond the expiration date of the one year probation period which had commenced on November 23, 1967. On November 13, 1968, or ten days before the expiration of the original probation period, another warrant
was issued for the arrest of the appellant at the request of the Probation Officer. Apparently, the appellant could not be found immediately; he was arrested on the street on November 26, 1968 by the Probation Officer and a police officer. They told him that he was being apprehended under the outstanding warrant of November 13. 1 A hearing was held on December 3, 1968 at which time the appellant was adjudged guilty of probation violation and was sentenced to serve the second year of the prison sentence originally imposed. The appellant appeals.
We agree with the appellant's contention that the Superior Court lacked the power to extend the probation period. The controlling Statute is 11 Del.C. § 4335(c) which provides in pertinent part:
'If the violation is established, the court may continue or revoke the probation or suspension of sentence, and may require the probation violator to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.'
Probation is a statutory creature; its implementation must be in accordance with the powers found within the Statute. Frabizzio v. State, 5 Del.Super. 395, 59 A.2d 452 (1948); 21 Am.Jur. (2d) 'Criminal Law' § 563. Unlike the Federal Probation Act (18 U.S.C.A. § 3651), 2 our Statute does not grant the authority to enlarge a period of probation once imposed. Accordingly, we must hold that the Superior Court erred in extending the appellant's probation period.
This ruling does not, however, save the appellant. The warrant of November 13, 1968 was issued about ten days prior to the expiration of the probationary period. This fact, in our opinion, validated the probation violation proceedings and sentence of December 3, 1968, even though they occurred about ten days after the expiration of the probationary period. See generally 21 Am.Jur. (2d) 'Criminal Law' § 567; Parkerson v. State, 230 Ark. 118, 321 S.W.2d 207 (1959).
If the appellant had been arrested and the violation proceedings held prior to the expiration of the probationary period, this attack could not have been made on the validity of the proceedings. Certainly, evasion from arrest until after expiration of the probation period may not become the controlling factor. We hold that the date of the issuance of the arrest warrant was the controlling factor.
The only other test is whether the Court acted within a reasonable time after the issuance of the warrant. We find that it did.
Finally, the appellant contends that there was no showing of probation violation at the hearing of September 13. This contention is irrelevant under our holding.
Affirmed.
Two contentions made by appellant on motion for reargument require further comment:
The appellant argues that the warrant of arrest issued on November 13 was made returnable on November 15; that since the writ was not executed and returned on or before its return date, it was a nullity; that consequently the probation and police officers were without authority...
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