In Re Torres

California Court of Appeal Jun 14, 1948 No. Crim. 590Published

Before: Barnard

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Holding. The court held that a formal order using the specific words "revoked" or "terminated" is not required to end probation, provided the record affirmatively shows the court determined a violation occurred and ordered the defendant to serve the remainder of the sentence.

Issues

Whether a court must enter a formal order explicitly revoking or terminating probation before committing a defendant to serve a previously suspended sentence.
Whether the justice's court lacked jurisdiction to issue a commitment because it was issued more than six months after the original conviction.

Disposition. remanded

Quotations verified verbatim against the opinion

“nothing in that decision requires that such revocation or modification appear in any particular form, or that á formal order using the words “revoked” or “terminated” must be entered.”

“This was a sufficient revocation ' or ■ termination of the original order of suspension or probation”

“the petitioner is-not entitled to his discharge merely because the word ‘‘revoked” or the word ‘‘terminated” was not used in the order.”

BARNARD, P. J.

The petitioner seeks a discharge upon a writ of habeas corpus. It appears from the record that on October 20, 1947, the petitioner was arraigned in the Justice’s Court of Orange Township, County of Orange, on a charge of battery and that he pleaded guilty thereto, waiving time for plea and sentence. An order was then entered on that date, as appears from the justice’s docket, ordering ..and adjudging that he be imprisoned in the county jail for a period of six months, with the further provision “it is ordered 5 months of the said six months term be suspended for 2 years, subject to proper behavior of the deft. Commitment is issued for 30 days.” The petitioner served the 30 days called for by this commitment.

Thereafter, a bench warrant was issued and the petitioner was brought into court and a. further order was made that he be imprisoned in the county jail for the term of five months. In this regard the docket, immediately below the order above quoted, shows the following:

“April 26, 1948. Deft. in. Bench warrant returned. Deft Pleads guilty of violating terms of probation, placed on him in Oct. 1947.

“it is therefore ordered and adjudged, the Deft be imprisoned in the Orange Co. jail for the period of 5 months.

“Commitment for said term of 5 months. Done in open court this 26 day of April, 1948.”

The order entered on October 20, 1947,. suspending five months of the sentence imposed had the effect of placing the petitioner on probation

(In re Herron,

217 Cal. 400 [19 P.2d 4]), and this was conceded at the oral.argument. The petitioner’s main contention is that the order and commitment

[180]

issued on April 26, 1948, were illegal and void for the reason that the court failed to make an order setting aside or revoking its former “judgment” suspending five months of the sentence on good behavior 11 and/or probation for the term of two years.” Petitioner relies solely on section 1203.2 of the Penal Code and the case of

In re Giannini,

In Re Torres

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BARNARD, P. J.

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