People v. Tibbits

California Court of Appeal Aug 28, 1943 No. Crim. 3713Published

Before: York

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Holding. The court held that the revocation of probation and subsequent commitment of the defendant to state prison did not constitute double jeopardy, as the constitutional protection against double jeopardy applies to trials rather than the service of sentences. Furthermore, the court affirmed that a defendant must be apprehended before a suspended sentence can be executed, and the determination of credit for prior incarceration is a matter for the Board of Prison Terms and Paroles.

Issues

Whether the trial court lacked jurisdiction to order the execution of a suspended sentence years after the initial revocation of probation.
Whether the commitment of the defendant to state prison after a prior conviction and incarceration constitutes double jeopardy under the California Constitution.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the constitutional guaranty relating to once in jeopardy “has no application to the service of a sentence, but applies only to twice being put on trial for the same offense.””

“Incidentally, the fact that appellant was absent at the time his probation was revoked, does not render the order revoking probation invalid.”

“Whatever time is to be deducted for previous incarcerations of appellant in the county jail or in San Quentin is a matter to be determined by the Board of Prison Terms and Paroles, and not by the court.”

YORK, P. J.

This is an appeal from a judgment ordered into execution after a revocation of probation.

By an information filed by the District Attorney of Los Angeles County, appellant was charged in Count I thereof with the crime of forgery, committed on or about January 2, 1932, and in Count II with the crime of burglary, connected in its commission with the charge set forth in Count I. Appellant entered a plea of “not guilty” to both counts, and when the case came on for hearing on November 16, 1933, by leave of court appellant withdrew his plea of “not guilty” and entered a plea of “guilty” to the offense charged in Count II of the information, which was stipulated to be burglary in the second degree, and orally applied for probation.

Thereafter, on December 14, 1933, appellant was sentenced to state prison for the term prescribed by law, the execution of sentence was suspended, and probation was granted for a period of two years under the following conditions: “. . . defendant shall serve six full months less eighty-five days of his probationary period at the county road camp. Defendant must make full restitution through Probation Department.” Count I of the information was dismissed.

On September 27, 1934, the court issued a bench warrant for appellant and revoked and terminated his probation in the absence of appellant, the court having found that appellant had violated the terms of his probation in that he was 1 ‘ a deserter from the probation office and had failed to make any restitution. ’ ’

In the meantime, in August of 1939, appellant was convicted of burglary at Modesto, California, was sentenced to state prison and was thereafter paroled.

On March 1, 1943, the court ordered the sentence of December 14, 1933, committing appellant to the state prison for the term prescribed by law, to be placed in full force and effect, and appellant was remanded to the sheriff.

Appellant here urges that “The order of March 1, 1943, was null and void; the defendant having been ordered committed on September 27, 1934, and having thereafter been delivered to the warden of the state prison at San Quentin for the term prescribed by law (for the Modesto burglary)

[337]

People v. Tibbits

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YORK, P. J.

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