Roberts, Eugene L.

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Criminal Law: Power of District Court to Grant Probation After Prisoner Has Commenced Service of Consecutive Sentences

University of Florida Levin College of Law

Florida Law Review Volume 8 Issue 2 Article 6 June 1955 Criminal Law: Power of District Court to Grant Probation After Prisoner Has Commenced Service of Consecutive Sentences Eugene L. Roberts Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Eugene L. Roberts, Criminal Law: Power of District Court to Grant Probation After Prisoner Has Commenced Service of Consecutive Sentences, 8 Fla. L. Rev. 233 (1955). Available at: https://scholarship.law.ufl.edu/flr/vol8/iss2/6 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 12:45:46 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Eugene L. Roberts, Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences, 8 U. FLA. L. REV. 233(1955).                                                                              ALWD 7th ed.                                                                         Eugene L. Roberts, Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences, 8 U. Fla. L. Rev. 233(1955).                                                                              APA 7th ed.                                                                          Roberts, E. L. (1955). Criminal law: power of district court by grant probation afterprisoner has commenced service of consecutive sentences. University of Florida LawReview, 8(2), 233-235.                                                               Chicago 17th ed.                                                                     Eugene L. Roberts, "Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences," University of Florida LawReview 8, no. 2 (Summer 1955): 233-235                                               McGill Guide 9th ed.                                                                 Eugene L. Roberts, "Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences" (1955) 8:2 U Fla L Rev 233. AGLC 4th ed.                                                                         Eugene L. Roberts, 'Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences' (1955) 8(2) University ofFlorida Law Review 233                                                               MLA 9th ed.                                                                          Roberts, Eugene L. "Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences." University of Florida LawReview, vol. 8, no. 2, Summer 1955, pp. 233-235. HeinOnline.                         OSCOLA 4th ed.                                                                       Eugene L. Roberts, 'Criminal Law: Power of District Court by Grant Probation afterPrisoner has Commenced Service of Consecutive Sentences' (1955) 8 U Fla L Rev 233Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Roberts: Criminal Law: Power of District Court to Grant Probation After PrPublished by UF Law Scholarship Repository, 1955CASE COMMENTSthat petitioner failed to appear in person at the pretrial conferenceas required by the order, but the failure to appear could be susceptibleof satisfactory explanation. It is difficult to find any justification forthe imposition of punishment without affording the accused an op-portunity to defend himself.JAMES E. MooRECRIMINAL LAW: POWER OF DISTRICT COURT TO GRANTPROBATION AFTER PRISONER HAS COMMENCEDSERVICE OF CONSECUTIVE SENTENCESPhillips v. United States, 212 F.2d 327 (8th Cir. 1954)Prisoner entered a plea of guilty to an indictment charging viola-tion of the National Motor Vehicle Theft Act1 in five separate countsand was sentenced to serve a period of imprisonment under each, thesentences to run consecutively. During service of the third sentencehe moved for suspension of execution of the unserved sentences on thefourth and fifth counts. The district court denied the motion as be-yond its jurisdiction. On appeal, HELD, when the prisoner commencedservice of his first sentence the district court lost jurisdiction either tosuspend sentence or to place the prisoner on probation, since under theProbation Act2 the five periods constituted one sentence. Judgmentaffirmed, Judge Collet dissenting.Probation, at least as far as the federal system is concerned, is acreature of statute. In the absence of specific statutory authority acourt lacks inherent power either to grant probation3 or to suspendexecution of sentence after the prisoner has been found guilty orhas pleaded guilty to an offense for which punishment is prescribedby law.4 The required statutory authority for federal courts wasprovided by the Probation Act of 1925, 5 which remained in effectuntil the criminal code was revised in 1948 and the present probationact became operative.118 U.S.C. §2312 (1952).-18 U.S.C. §3651 (1952).aUnited States v. La Shagway, 95 F.2d 200, 201 (9th Cir. 1938) (dictum).4Ex parte United States, 242 U.S. 27 (1916).543 STAT. 1259 (1925), 18 U.S.C. §7426 (1946).2Florida Law Review, Vol. 8, Iss. 2 [1955], Art. 6https://scholarship.law.ufl.edu/flr/vol8/iss2/6UNIVERSITY OF FLORIDA LAW REVIEWThe trial court loses power to grant probation as soon as aprisoner commences service of his sentence, since the prisoner thencomes under the control of the executive branch of government.6The Supreme Court enunciated this principle in 1927 in United Statesv. Murray and Cook v. United States,7 based on its interpretation of thepurpose for which the probation act was enacted, namely, promotionof the reclamation of youthful prisoners by avoiding their confinementwith hardened criminals. 8 Probation is proper when the sentence isto become effective at the expiration of a prior sentence imposed byanother court,9 and it may be granted even after expiration of theterm at which the defendant was convicted if he has not commencedservice of his sentence.' 0The 1925 probation act did not authorize the trial court to imposeimprisonment on some counts and grant probation on others, butseveral district courts assumed this power and were upheld on review."There is a division of authority in regard to the nature of serviceunder "consecutive sentences." The Probation Act of 1948 provides:"Probation may be limited to one or more counts or indictments"; butthe situation in the instant case has apparently been passed on byonly one other appellate court since enactment of this statute.12 Thatcourt stated that "a prisoner serving the first of several consecutivesentences is not serving the other sentences."There are two objections to the suspension of a sentence to beserved at a future time when the person is presently serving anothersentence. The first is based on the fact that the purpose of the pro-bation act, according to the Murray and Cook cases, is to relieve a6E.g., Bozel v. United States, 139 F.2d 153 (6th Cir. 1943), cert. denied, 321 U.S.800 (1944); United States v. Craig, 95 F.2d 202 (9th Cir. 1938); United States v.La Shagway, 95 F.2d 200 (9th Cir. 1938); Davis v. United States, 15 F.2d 697 (W.D.Ark. 1926); Reeves v. United States, 35 F.2d 323, 325 (8th Cir. 1929) (dictum).7275 U.S. 347 (1928).SId. at 357.9Kelley v. United States, 209 F.2d 638 (10th Cir. 1954).loPernatto v. United States, 107 F.2d 372 (3d Cir. 1939); Nix v. James, 7 F.2d590 (9th Cir. 1925); Kriebel v. United States, 10 F.2d 762 (7th Cir. 1926); UnitedStates v. Weiss, 28 F. Supp. 598 (E.D. Pa. 1939)."Weber v. Squier, 124 F.2d 618 (9th Cir. 1941), cert. denied, 315 U.S. 810(1942); White v. Steigleder, 37 F.2d 858 (10th Cir. 1930); Buhler v. Pescor, 63 F.Supp. 632 (W.D. Mo. 1945); United States v. Pendergast, 28 F. Supp. 601 (W.D.Mo. 1939). Contra, United States v. Greenhaus, 85 F.2d 116 (2d Cir.), cert. denied,299 U.S. 596 (1936).12Kirk v. United States, 185 F.2d 185, 187 (9th Cir. 1950).3Roberts: Criminal Law: Power of District Court to Grant Probation After PrPublished by UF Law Scholarship Repository, 1955CASE COMMENTSdeserving defendant of any imprisonment whatsoever.13 In the 1948revision of the probation act, however, Congress expressly authorizedthe limitation of probation to one or more counts of an indictmentcontaining several counts. Obviously Congress did not regard relieffrom all imprisonment as the sole purpose of probation.The second objection is that such action infringes the pardoningpower of the executive branch.'14 If, however, the view is adopted thata prisoner serving the first of several consecutive sentences is notserving the other sentences, he has not passed to executive controlswith respect to the other sentences and therefore remains subject tocontrol by the judiciary. The probation act itself makes no attemptto merge consecutive sentences into one.The device of imposing individual sentences on the various countsof an indictment has a practical advantage. A general sentence notexceeding the aggregate of the maximum individual sentences isvalid; but, if the separate sentence device is employed and on appealthe sentence on one or more of the counts is held to be unjustified,the matter may be disposed of by reversing the sentence as to the badcount or counts and affirming the others.'6Under the Parole Act 7 a prisoner does not become eligible forparole until he has served one third of his sentence or, as regards alife sentence, fifteen years. By reserving the power to grant probationbefore the expiration of the statutory period governing parole, thejudiciary creates an additional incentive for the prisoner to rehabili-tate himself. By committing the prisoner to a term of imprisonmentwhile reserving the right to grant probation, a court can avoid thedanger of granting probation initially in a doubtful case and ofthereby permitting the probationer to commit another crime while onprobation. At the same time it can reduce the hazard of requiring13275 U.S. 347, 357 (1928): "The great desideratum [of the Probation Act)was the giving to young and new violators of law a chance to reform and toescape the contaminating influence of association with hardened or veteran crim-inals in the beginning of the imprisonment.... Probation is the attempted savingof a man who has taken one wrong step and whom the judge thinks to be abrand who can be plucked from the burning at the time of the imposition ofthe sentence."'14U. S. CONsT. art. II, §2; Nix v. James, 7 F.2d 590, 593 (9th Cir. 1925) (dictum).3sSpeciflcally, under provisions of 18 U.S.C. §4082 (1952), the prisoner is de-livered into the custody of the Attorney General or his authorized representative.16Neely v. United States, 2 F.2d. 849, 853 (4th Cir. 1924) (dictum).1718 U.S.C. §§4201-4207 (1952).4Florida Law Review, Vol. 8, Iss. 2 [1955], Art. 6https://scholarship.law.ufl.edu/flr/vol8/iss2/6

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Criminal Law: Power of District Court to Grant Probation After Prisoner Has Commenced Service of Consecutive Sentences

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