310 F2d 692 McDonald v. United States

310 F.2d 692

Henry Taul McDONALD, Appellant,
UNITED STATES of America, Appellee.

No. 19710.

United States Court of Appeals Fifth Circuit.

Nov. 28, 1962.

Henry Taul McDonald, Leavenworth, Kan., for appellant.

Leven H. Harris, Asst. U.S. Atty., Shreveport, La., Edward L. Shaheen, U.S. Atty., for appellee.

Before HUTCHESON, CAMERON and JONES, Circuit Judges.


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Appellant pleaded guilty to a three-count Dyer Act violation in 1946. He was sentenced to five years imprisonment on the first count and imposition of sentence was suspended on the other counts; but he was placed on five years probation, to begin at the expiration of the sentence imposed on the first count.


After serving forty-one months, appellant was conditionally released and, six days later, was convicted of armed robbery in a Texas court and sentenced to the Texas penitentiary. After serving five years on the State sentence, he was released by the State authorities, but returned to the Federal Penitentiary to serve the balance of his five-year Federal sentence as a 'conditional release violator.' He was finally released on March 27, 1956.


On November 7, 1960, as a result of a plea of guilty to a violation of his probation, appellant was sentenced to two five-year terms on the second and third courts, for which imposition of sentence had originally been suspended.


Appellant's main contention is that probation expired prior to November 7, 1960, as the Probation Act limits probation to five years. 18 U.S.C.A. 3651. But, as the judge below pointed out, the probationary period did not begin until March 27, 1956, the day appellant finished serving his sentence on the first count. Thus, the probationary period had not run in 1960 and would not have run until March 27, 1961.


Other errors urged have been considered and found without merit and the judgment of the court below is