People v. Broes

SHINN, P. J. Frank Broes, Sr., has noticed appeals from two judgments rendered following an order revoking probation in each case, which had been extended to him following his conviction of separate offenses of felonies. May 14, 1954, in ease Number 163799, Broes pleaded guilty to a charge of violation of the Dangerous Weapons’ Control Law, Deering’s General Laws, Act 1970, section 1. On June 10, 1954, proceedings were suspended and Broes was put on probation for three years and fined the sum of $200. March 21, 1955, in case Number 166468, appellant was found guilty of two offenses of grand theft. (People v. Broes, 138 Cal.App.2d 843 [292 P.2d 556].) Proceedings were suspended and he was granted probation for five years on condition that he make restitution and pay a fine of $1,000. Among the terms of probation he was directed to report to the probation officer as directed; his business activities were to be under the supervision of the probation officer and he was to report to the officer his activities, income and expenses. The conviction under each count was to run concurrently as to the probation period.

May 14,1957, the probation officer filed a report in each ease recommending that probation be revoked and sentence pronounced. A hearing was set for May 16, 1957. On June 4, 1957, in case Number 163799, the court made a minute order “Violation of probation filed. Probation revoked. Bench Warrant issued.” An order was made June 11th “Bench Warrant is recalled. Defendant is released on his own recognizance.” June 13th another order was made “Probation is revoked and defendant is sentenced as indicated. ’ ’ On the same day in case Number 166468 an order was made “Probation is revoked and defendant is sentenced as indicated.” The sentence under case Number 163799 was ordered to run concurrently with the sentence in ease Number 166468.

It is contended by the appellant that his probationary period expired June 10, 1957, in case Number 163799, that the order made on June 4th was in some manner nullified by the orders of June 11th and 13th and that the later order [3]was void as having been made after expiration of the probationary period. And it is contended that probation not having been revoked prior to June 10th, the court was without authority to impose sentence. Upon this point appellant cites People v. O’Donnell, 37 Cal.App. 192, 194 [174 P. 102], We have no reason to question the effectiveness of the order of June 4th. The order of June 11th recalling the bench warrant and releasing defendant on his own recognizance and the further minute order ordering probation revoked as of June 13th did not have the effect of revoking the former order. The later order was an unnecessary duplication of the earlier one.