U.S. v. Rodriguez, 82-1048
| Decision Date | 29 July 1982 |
| Docket Number | No. 82-1048,82-1048 |
| Citation | 682 F.2d 827 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward Joseph RODRIGUEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Yolanda Barrera Gomez, Los Angeles, Cal., for defendant-appellant.
William L. Webber, Asst. U. S. Atty., Los Angeles, Cal., William S. Farmer, Jr., Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before ANDERSON, FERGUSON and REINHARDT, Circuit Judges.
This is a case determining when a term of probation began to run. Commendably, the district court, recognizing the importance of the issue, postured the case to insure an effective appeal.
In the fall of 1973, defendant Rodriguez pleaded guilty to one count of bank robbery and on October 1, 1973 was sentenced to a 12-year prison term. The court ordered the suspension of the prison term on the condition that the defendant spend the first six months of his sentence in a community treatment center (CTC) and that he be placed on probation for five years.
In October 1975, the defendant was found to be in violation of his probation. As a result, his probation was revoked and the 12-year sentence reimposed. However, in December 1975 the sentence executed in October was again modified and the defendant was reinstated on probation.
A similar series of events occurred three years later. In December 1978, defendant was again found in violation of probation. As a result, his probation was revoked and the 12-year prison sentence was reinstated. On March 19, 1979, the defendant agreed to an extension of his probationary term in excess of the statutory five-year maximum, and as a result his sentence was suspended one more time.
Subsequently, a third petition alleging that the defendant had violated probation was filed, and a revocation hearing was held on January 18, 1982.
At the hearing, defendant filed a motion to quash the bench warrant on the ground that the court was without jurisdiction to issue the warrant. His motion was unsuccessful. The defendant's probation was again revoked, but execution of the sentence was stayed pending appeal and the defendant released.
The district court was without jurisdiction to issue the warrant because the five-year maximum for a term of probation had expired. Defendant's consent cannot render an illegal extension legal. Thus, the order revoking probation is reversed.
There are two issues in this case:
(1) When did the defendant's probation begin to run?
(2) Can the defendant stipulate to a probationary term exceeding the five-year maximum?
The government concedes that federal courts derive their sole authorization to suspend a sentence and place a defendant on probation from 18 U.S.C. § 3651 and that § 3651 limits the maximum probation term to five years. The government contends, however, that it is unclear when defendant's probation term began and, therefore, it is also unclear if the five-year maximum has expired. Thus, it suggests that the case be remanded to the district court to determine when the probation period began and to ascertain how much of the probation period should be tolled. According to the government, without such a determination it is impossible to know whether the court properly exercised jurisdiction.
Defendant readily concedes that the period of incarceration in prison for probation violations tolls the probationary period. Altogether the defendant spent 407 days in prison for such violations. However, under the facts of this case, the probationary period should not be tolled for the first six months of his sentence spent in the treatment center. Therefore, Rodriguez correctly insists that even with an accurate tolling of the probationary period, the five-year maximum was clearly violated.
The "unifying principle" that emerges from cases in which the five-year period has been the subject of calculation is that "a probationer cannot obtain credit against the five-year period for any period of time during which he was not in fact under probationary supervision by virtue of his wrongful act." United States v. Workman, 617 F.2d 48, 50 (9th Cir. 1980). We must therefore determine at what date defendant came under probationary supervision.
It is possible for federal probation to run concurrently with a federal prison sentence. See Sanford v....
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