U.S. v. Rice

• Decision Date: 26 March 1982
• Docket Number: No. 81-7250,81-7250
• Citation: 671 F.2d 455
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherman Lee RICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 455

671 F.2d 455

UNITED STATES of America, Plaintiff-Appellee, v. Sherman Lee RICE, Defendant-Appellant.

No. 81-7250.

United States Court of Appeals Eleventh Circuit.

March 26, 1982.

Corretti & Newsom, Samuel Maples (Court-appointed), Birmingham, Ala., for defendant-appellant.

G. Douglas Jones, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Sherman Lee Rice appeals the revocation of his probation and the reinstatement of his original sentence of incarceration. We affirm the revocation of probation. Finding that the district court premised its reinstatement of sentence on a misapprehension of law, we remand for resentencing.

I.

On April 13, 1978, Sherman Lee Rice (appellant) pleaded guilty to unlawful possession of a United States Treasury check stolen from the mail in violation of 18 U.S.C. § 1708 (1976), and to forging the payee's indorsement in violation of 18 U.S.C. § 495 (1976). The district court imposed a three year sentence, suspended execution of the sentence, and placed Rice on probation for four years. One condition of Rice's probation was that he "refrain from violation of any law (federal, state, and local) and get in touch immediately with (his) probation officer if arrested or questioned by a law enforcement officer."

On February 4, 1981, Rice's probation officer filed a petition for revocation of probation (the petition), alleging eight violations of the stated condition during the preceding twenty-nine months. ¹ On March 10, 1981, the district judge who had sentenced Rice conducted a revocation hearing. The court found that appellant had violated his probation as alleged and revoked probation for that reason. ²

Turning to the matter of sentencing, the court commented that it had received a notation that Rice had been charged with rape in a warrant issued on December 11, 1980. The facts underlying the charge were not presented, and Rice made no statement for fear of self-incrimination. The court entertained argument in mitigation of sentence and then stated,

I have got no alternative but to reimpose the original three year custodial sentence that was imposed.

And I must say parenthetically that a large part of my imposing the three year custodial sentence has to do with the pending rape charges.

It is, therefore, I think appropriate for you, within a hundred and twenty days, to file a motion under Rule 35 to reduce the sentence. And if in that motion you can show that he has been acquitted of those charges, or if you can show that they have not been tried, I can then at least hold that motion in abeyance and see what happens in the state court with regard to those charges before I act on a motion to reduce the sentence....

If he is acquitted of those charges, then I may very well reduce the three year custodial sentence that I originally imposed.

(Record, vol. II at 88-89).

II.

Appellant assigns four errors to the district court's revocation of probation, all of which we find without merit. First, Rice contends that the hearing violated his fifth amendment right to due process because the court based its decision in part on the rape charge, a probation violation of which Rice had no notice because it was not listed in the petition. We need not address the constitutional question because the court did not consider the rape charge in revoking probation. See note 2, supra.

Second, Rice contends that the hearing was fundamentally unfair in violation of fifth amendment due process because the probation officer unreasonably delayed filing his petition, which listed violations dating back nearly two and a half years. ³ We reject the proposition that a probation revocation hearing is constitutionally defective when the petition alleges a series of violations committed during a period of several years. As the district court noted, this was a "building block case." (Record, vol. II at 80). It appears from the record that Rice's probation officer sought patiently and tolerantly to help rehabilitate him and succumbed only in the face of Rice's continuing inability to comply with the conditions of his probation. We decline to hold such treatment fundamentally unfair. Implicit in Rice's position is that a probation officer must petition for revocation upon the first violation of probation, a practice we are loath to encourage. While due process may in some circumstances limit the district court's discretion to revoke probation based on stale violations, see, e.g., United States v. Tyler, 605 F.2d 851 (5th Cir. 1979), we hold that a revocation of probation based on a series of violations punctuating the probationary period is, without more, constitutional.

Rice next contends that the district court erred by basing the revocation in part on misdemeanor convictions obtained when he was not represented by counsel. The record indicates that Rice may have been unrepresented when he pleaded guilty to the August 19, 1980, and the November 3, 1980, traffic offenses, and we so assume. However, Rice testified to the facts underlying both convictions at the revocation hearing. He testified that on August 19, 1980, he ran a red light while driving without a valid license, and that on November 3, 1980, he was driving his aunt to the hospital, again without a valid license, and ran from the police when they stopped him for reckless driving.

In a probation revocation proceeding, all that is required is that the evidence reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation; evidence that would establish guilt beyond a reasonable doubt is not required. United States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). We therefore need not decide whether Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (uncounselled misdemeanor conviction cannot be used to increase punishment for later offense under enhanced punishment statute), prohibits the use of an uncounselled misdemeanor conviction to establish a probation violation. Ample evidence apart from the convictions themselves was presented to establish the August 19, 1980, and November 3, 1980, probation violations. Cf. United States v. Marron, 564 F.2d 867, 871 (9th Cir. 1977).

Finally, Rice contends that the district court abused its discretion by revoking his probation. Among Rice's assertions in support of this contention are two that we have already rejected: that the district court considered uncounselled misdemeanor convictions and that the petition alleged stale violations. Rice further argues that most of his violations were minor traffic offenses, that mitigating circumstances attended some of the offenses, and that he is a suitable candidate for rehabilitation without incarceration. These considerations were before the district court, which found them unpersuasive. Probation revocation is entrusted to the sound discretion of the district court, and it is only upon a clear showing of abuse of that discretion that the court's decision will be disturbed. United States v. Garza, 484 F.2d 88 (5th Cir. 1973). The record intimates no such abuse. For this and the foregoing reasons, we affirm the revocation of Rice's probation.

III.

The record shows that the district court premised its decision to reinstate the three year term of incarceration in significant part on its belief that it could entertain a subsequent motion to reduce sentence pursuant to Fed.R.Crim.P. 35(b). ⁴ The court announced that in reinstating the original sentence, it was relying in large part on the pending rape charge against Rice, invited the filing of a Rule 35(b) motion within 120 days, and indicated that depending upon the disposition of the rape charge, it would likely reduce the original sentence. We hold that the court lacked jurisdiction of a Rule 35(b) motion subsequent to the revocation, that its decision to reinstate the original custodial sentence was thus grounded in a misapprehension of law which operated to appellant's prejudice, and that we must therefore remand for further proceedings.

Fed.R.Crim.P. 35(b) provides:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

The statutory 120-day period within which a court may reduce sentence is jurisdictional, and a court is without power to reduce a valid sentence pursuant to the statute after that time. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979). ⁵ The district court's jurisdiction to entertain a Rule 35(b) motion subsequent to Rice's 1981 revocation hearing therefore turns on whether the court's action on that occasion constituted an imposition of sentence for purposes of Rule 35(b). ⁶

When, as here, the district court imposes sentence at trial, suspends execution of the sentence and places the defendant on probation, ⁷ there are two plausible characterizations of what happens when probation is later revoked. One view is that since the revoking court has available a range of sentencing options ⁸ and evaluates the usual sentencing factors and exercises discretion in selecting an appropriate sentence, its action amounts to an imposition of sentence. See United States v. Colvin, 644 F.2d 703 (8th...