United States v. Perlie Donald Workman , 617 F.2d 48 ( 1980 )

SPROUSE, Circuit Judge:

Appellant, Perlie Donald Workman, was sentenced on a guilty plea to five years imprisonment in May 1973 for possession of hon-tax-paid whiskey and an unregistered distillery. The district court suspended the sentence and placed Workman on probation for five years on the condition, among others, that he not violate the laws of the United States or North Carolina and that he pay in installments a fine of $4,000.00.

Some two and one-half years later, the local county sheriff found and destroyed an illegal distillery in the basement of Workman’s home and four months later his probation officer found another illegal distillery in the basement of a storage building located on Workman’s property. These searches were both conducted without a search warrant.

After complaint and hearing, the district court revoked Workman’s probation on June 20, 1977. The court reduced the original sentence to two years, ordered him to serve that term and remitted the unpaid portion of the fine ($1,995.00). Since the trial court impermissibly considered evidence produced by the two warrantless searches, this court vacated the district court’s revocation order. United States v. Workman, 585 F.2d 1205 (4th Cir. 1978). We rendered our decision on September 21, 1978.

At the district court hearing on remand (April 6, 1979), there was no further evidence introduced. The district court ordered probation reinstated. At that time more than five years had elapsed since Workman was placed on five years probation. The district court ruled, however, that the probationary period was tolled between the date of its revocation order and our decision vacating the revocation order — a period of eleven months and ten days. It reasoned that this period could not be counted against the five year probationary period, because “the defendant was not under probation at that time, he was not supervised by any officer of this Court and was not incarcerated.” It placed him under continued probation for eleven months and ten days from the date of this Court’s decision (September 21, 1978). He was also ordered to pay the balance of the previously remitted fine ($1,995.00).

Workman, in appealing this order, argues first that his probation had expired at the time of the remand hearing, and second that since the fine was a condition of probation the court was without power to reinstate the balance of the fine. We agree with the first contention but disagree with the second.

Workman’s first contention is grounded on 18 U.S.C. § 3651¹ which limits the period of federal probation, together with any extensions thereof, to a maximum of five years. Since more than five years had elapsed by the time of the district court’s reimposition of probation in 1979, and since he had continuously resided within the jurisdiction of the district court during his probationary period beginning in 1973, the district court, he argues, was without power and jurisdiction to reimpose probation. He maintains he committed no wrongful act and is not responsible for the hiatus in the five-year period.

The government, on the other hand, argues that the district court’s order revoking probation tolled the running of the probationary period, at least until that order was vacated by this Court in September, 1978.

Federal trial courts are empowered by 18 U.S.C. § 3651 to suspend a sentence of imprisonment and to place a defendant on probation. This Congressional authority is the sole power by which federal trial courts take such action for they have no inherent power to do so. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Ellenbogen, 390 F.2d 537 (2nd Cir. 1968). The length of the probationary term is within the sole discretion of the trial court, subject only to the stated five-year maximum period. United States v. Nunez, 573 F.2d 769 (2nd Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2828, 56 L.Ed.2d 774 (1978); and the probationary term may be extended limited only by the five-year period. See, e. g. Skipworth v. United States, 508 F.2d 598 (3rd Cir. 1975).

There is no question here but that the trial court correctly fixed probation after the original sentence in 1973. Since there was no attempt to extend probation under the authority of Section 3651, the first issue in this case is limited to the correct determination of the time included in the five-year period. Did Workman’s probation continue after the attempted revocation and through the appellate decision thus completing the five-year period or was the probationary period tolled during the pendency of the appeal?

The calculation of the five-year limitation period has been the subject of considerable litigation. The unifying principle implicit in the resulting decisions is that a probationer can not obtain credit against the five-year period for any period of time during which he was not, in fact, under probationary supervision by virtue of his own wrongful act. The focus has been on whether the probationer’s wrongful act resulted in the termination of probationary supervision, rather than on a simple, mathematical computation of five years from the date the probationary term began. Consequently, in computing the five year period courts have excluded the time period during which a probationer is imprisoned on an unrelated offense, e. g., United States v. Gerson, 302 F.2d 430 (6th Cir. 1962) (intervening state confinement); United States v. Gelb, 175 F.Supp. 267 (S.D.N.Y.), aff’d, 269 F.2d 675 (2nd Cir.), cert. denied, 361 U.S. 822, 80 S.Ct. 66, 4 L.Ed.2d 66 (1959) (intervening federal confinement); is in jail for another offense and for a violation of probation, e. g., United States v. Lancer, 508 F.2d 719 (3rd Cir. 1975); or is outside the jurisdiction of the court voluntarily and not under the supervision of a probation officer. United States v. Green, 429 F.Supp. 1036 (W.D.Tex. 1977). Although analogous the instant case does not with precision fit this precedential pattern.

Workman can not be held responsible for the eleven month and ten day gap in the period during which he was not serving probation. The probation officer initiated the action in the district court resulting in the void revocation of probation. To state the obvious, the attempted interruption of his probation by revocation was not a voluntary act on his part, nor may the alleged acts on his part leading to the interruption be considered wrongful in the eyes of the law. It is apparently true that had evidence of such alleged acts been properly obtained there may have been grounds for legally revoking the defendant’s probation. The revocation actions taken, however, were based on unconstitutionally obtained evidence. Since no additional evidence was introduced on remand, there effectively was no evidence of a probation violation. The unconstitutional aspects of the revocation hearing emphasize the involuntary nature of any withdrawal of probation supervision. Courts cannot extend probationary power beyond that granted by Congress by invoking a constitutionally void revocation proceeding. Where, as here, a defendant is successful in appealing a revocation action based on the infringement of his constitutional rights, the probation expiration time is not tolled pending appeal.

That portion of the district court’s order reinstating the fine, however, is valid. In Workman, supra, we vacated the order of the district court revoking probation and cancelling the fine because unconstitutionally seized evidence had been improperly utilized. We remanded for consideration of the revocation issue. The posture on remand for further consideration is that “the case goes back to the trial court for a new determination of the issues presented as though they had not been determined before, pursuant to the legal principles enunciated in the appellate court’s opinion, which must be taken as the law of the case.” (Citations omitted) Poletti v. C. I. R., 351 F.2d 345, 347 (8th Cir. 1965).

The case sub judice on remand was in exactly the same posture as when the trial court initially considered revocation. After remand the court conducted the hearing of April, 1979. The original probation order was then in effect. No evidence was introduced indicating a violation of any conditions of probation. The original probation order, then, totally controlled. The five-year probation time had run but the fine had been only partially paid. The balance is now due. It goes without saying that any enforcement proceedings relating to the fine are controlled by 18 U.S.C. § 3565 which authorizes, if necessary, execution against the property of the defendant. Since the five-year probationary period has expired, probation can not be revoked in connection with any such enforcement measures.

The order of the district court is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART.

1 . As pertinent here § 3651 provided:

“Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment any court . . . may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. .

The court may revoke or modify any condition of probation, or may change the period of probation.

The period of probation, together with any extension thereof, shall not exceed five years. While on probation and among the conditions thereof, the defendant—

May be required to pay a fine in one or several sums; and . 18 U.S.C. § 3651.