In re Hazlett

California Court of Appeal Apr 9, 1934 No. Crim. No. 1796Published

Before: Sturtevant

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Holding. The court held that a trial court lacks jurisdiction to modify a probation order by imposing a new and additional term of imprisonment after the original term of imprisonment imposed as a condition of probation has already been served.

Issues

Whether a trial court has jurisdiction to extend a probation period by imposing a new and additional term of imprisonment after the initial jail term has expired.

Disposition. granted

Quotations verified verbatim against the opinion

“The case does not present an instance of an attempt to modify a condition contained in the probation order, but an atempt to add a new condition to said order.”

“If the statute, Penal Code, section 1203, does not authorize such attempt the order of November 21, 1930, is void and the writ should issue.”

STURTEVANT, J. This is an application for a writ of habeas corpus. After being served with process William J. Fitzgerald, sheriff of the city and county of San Francisco, made a return on the writ in which he set forth the commitment under which he holds the petitioner. That commitment is in words and figures as follows:

“This cause came on regularly this day for judgment.

“The district attorney, Matthew Brady, by Harmon D. Skillen, assistant district attorney, with the defendant George Hazlett and his counsel Charles Taylor, came into court: The defendant George Hazlett was duly informed by the court of the information duly presented and filed against him on the 2nd day of October, 1928, by the district attorney of the city and county of San Francisco, charging said defendant with the crime of felony, towit: burglary; of his arraignment on the 10th day of October, 1928, and plea of guilty on the 13th day of October, 1928, and the order of court finding the degree to be second degree; of the order of court on the 10th day of November, 1928, granting him probation for a period of five years on condition that he serve a term of one and one-half years in the county jail; of the order of court on this the 21st day of November, 1930, modifying said order granting him probation for a period of five years by extending the period of probation from this date on condition that he serve a term of five years in the county jail.

“The defendant George Hazlett was then asked if he had any legal cause to show why judgment should not be pro[736]nounced against him; to which defendant replied that he had none.

“And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment:

“That whereas, the said defendant George Hazlett having been duly convicted in this court of the crime of felony, towit: burglary, second degree,

“It is therefore ordered, adjudged and decreed that the said defendant George Hazlett be punished by imprisonment in the county jail of the city and county of San Francisco, state of California, for the term of fiye years, said sentence to run concurrently with the period of probation granted herein.

“The defendant George Hazlett was then remanded to the custody of the sheriff of the city and county of San Francisco, officer in charge of said county jail.”

In re Hazlett

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