People v. Petitt

WOOD, J. Defendant, appearing for himself, appeals from the judgment and sentence imposed upon him.

On January 8,1942, the defendant, represented at that time by the public defender, pleaded guilty to a charge of burglary. His request for permission to apply for probation was granted, and the matters of probation, fixing the degree of the crime, and pronouncing judgment were continued to January 29, 1942. On said date, the court found that the crime was burglary of the first degree, suspended the proceedings and granted the defendant probation for five years upon the conditions that he serve the first six months in the county jail and that he make restitution.

On October 13, 1942, the court made the following order: “Probation is modified as follows: Defendant is allowed to leave the state.” The record herein does not show the reason for such modification, but the defendant states in a letter to this court, which letter he sent in lieu of a brief, that “I asked and received permission from the probation department to join the army.” It appears from the original file in the office of the clerk of the trial court that said order was based upon a report of the probation officer recommending the modification, and stating that “A letter is written asking permission to return to his home at Coffeyville, Kansas, where a better job can be obtained. ’ ’

On September 7, 1944, the court made an order as follows: “Violation of probation is filed. Probation heretofore granted [245]is revoked and a bench warrant is issued for the appearance of said defendant.” That order was based upon a written report of the probation officer, filed on September 7, 1944, which stated that defendant had been convicted on March 20, 1944, in the Federal District Court at St. Louis of the crime of violating the National Motor Vehicle Act (Dyer Act); that he had been sentenced to the federal reformatory at El Eeno, Oklahoma, for two years; and that he had arrived at the reformatory on March 24, 1944.

On October 13, 1945, the defendant was present in the trial court herein with his counsel, the public defender. On said date the court sentenced defendant to the penitentiary at San Quentin for the period prescribed by law. Soon thereafter he was taken to the penitentiary, and he is there now.

Defendant’s letter to this court, above referred to, will be regarded as his brief. The substance of his contention is that his period of probation had ended before the court revoked the order of probation, and therefore, the court did not have the power to sentence him. Apparently he considers that the order modifying probation whereby he was permitted to leave the state was an order terminating probation. He stated in his letter that he received mail stating that the probation was set aside. The record herein does not show that probation was terminated prior to the order of revocation on September 7, 1944, and the original file in the office of the clerk of the trial court does not show that probation was terminated before that date.