State v. Saavedra

¶1The record and the brief transcript before us disclose the following facts. On September 7, 1966, the defendant was found guilty of the crime of nonsupport and sentenced (Adorno, J.) to a year in jail, execution suspended, and placed on probation for a period of two years. General Statutes § 54-111. No appeal from this judgment was taken. The records of the clerk for the fourteenth circuit show that probation was revoked on June 19, 1967,1 a mittimus was issued on July 3,1967, and the defendant began serving his term. Thereafter, for reasons which do not appear on the record before us, he was released from jail on January 10, 1968, and continued on probation without any modification of the sentence. The unexecuted balance of the sentence was 173 days. On the date of his re*369lease, he was rearrested for violation of the conditions of probation imposed by the judgment of September 7, 1966. He then filed an appearance bond of $150 and was free on bail until the date of hearing —February 19, 1968. He had been advised of his rights by the presiding judge on January 10, 1968. At the date of hearing, he appeared and was represented by counsel. The court found that he had violated the conditions of probation, and probation was thereupon revoked. He was subsequently admitted to bail for the purposes of appeal. This bail was evidently the same cash amount as had been posted by the defendant on January 10 as an appearance bond. On March 4, 1968, the defendant for the first time filed a written notice of intent to appeal and asked for an extension of time of two weeks to prepare and file his appeal, inasmuch as a transcript of the proceedings had not been received although it was ordered on February 19. Practice Book §§ 954, 962. The extension was granted.

¶2On March 19, 1968, the defendant made a further motion for an extension of time to perfect his appeal, and the court extended the time to April 5. Erroneously, the clerk’s office notified counsel for the defendant that an extension had been granted to April 8. On that date, at 5:15 p.m., after office closing hours, a representative of the defendant brought in a paper, for filing by the clerk, purporting to be a motion for waiver of fees, costs and security for appeal and for cost of a transcript. This was received and marked by the clerk “Filed 5.T5 P.M., April 8, 1968.” At the same time, there was filed a paper purporting to be an affidavit of the defendant, dated April 4, stating that he was an indigent and unable to provide fees, costs, security and the transcript to effect his appeal. The photostatic copy of the supposed affidavit, which is part of the record, shows no signature of the defendant nor of the *370officer before whom it was represented to have been sworn to and signed. The motion was denied by the conrt, and since the time for filing the appeal had passed, with no further extension requested or granted, the court ordered the appeal vacated and bail forfeited and that mittimus issue. This was done and service attempted, but the police, after diligent search and inquiry, were unable to find the defendant or even to learn of his whereabouts. It was undisputed during the hearing before us that the defendant’s counsel was unable to locate him. The trial court could reasonably draw the inference that the defendant had secreted himself or had left this jurisdiction.

¶3On May 3, 1968, the defendant’s counsel filed a motion to reinstate the appeal and appeal bond and to vacate the mittimus. The sole grounds alleged in support of the motion were (1) that the defendant’s counsel was not notified by the court before forfeiture so that the defendant could present himself in court and save his bond, and (2) that the appeal was vacated before the extension had terminated. There is no merit to either claim. The record shows that forfeiture of the bond was ordered on April 10 after a vain search for the missing defendant to take him into custody on the mittimus issued on April 8. It is also plain that at no time had the appeal been perfected. The matter before us is not an appeal from a judgment but for a review of the court’s action as stated above. Practice Book §§ 692, 1023.

¶4The foregoing lengthy recital of the proceedings in the trial court has been made necessary because of the obvious errors in procedure induced by counsel. The defendant had adopted the position throughout that he was entitled to an appeal from the order of the court revoking probation and requiring the unexpired portion of the sentence to be served. *371While there may he situations in which an appeal might lie from such order, this is not one of them. The provisions for arrest and proceedings following an alleged violation of probation are contained in General Statutes § 54-114.2 Nothing in the record shows that, with the exception of the attempted appeal, these have not been followed. The defendant was duly arrested, the nature of the violation was made known to him, he was represented by counsel, and he was given a hearing. Thus the constitutional requirements to which he was entitled were fulfilled. Mempa v. Rhay, 389 U.S. 128. What took place at the hearing we have no means of knowing from the *372record before us. Moreover, the defendant makes no mention of any errors committed at the hearing; his only claim is that his appeal was vacated by the court and he was ordered to serve the unexpired portion of the sentence.

¶5The proceedings in this case are governed by § 54-114. It is the firmly established law that an appeal to an appellate tribunal may be taken only from a final judgment. See General Statutes § 51-265. “[I]n a criminal case the imposition of the sentence is the judgment of the court. State v. Lindsay, 109 Conn. 239 . . . ; State v. Vaughan, 71 Conn. 457, 458 . . . .” State v. Smith, 149 Conn. 487, 489; State v. Langley, 156 Conn. 598, 601. After revocation of probation, the original sentence remains as though it had not been suspended (except for the credit to be given for the part served). Two valid sentences for the same offense cannot coexist. Roberts v. United States, 320 U.S. 264, 266.

¶6The leading case in Connecticut, often cited in federal and state jurisdictions, is Belden v. Hugo, 88 Conn. 500. It was there held, inter alia, that probation and commitment to the custody of a probation officer are not in any sense punishment of the probationer but are imposed for his moral improvement and reformation, as a result of which punishment might become unnecessary and its stigma avoided. Id., 504. Inasmuch as such commitment is not penal in character, it is not a substitute for a commitment to jail and does not reduce the unexpired portion of the sentence once the stay of execution is removed by revocation of probation. See State v. Tomczyk, 20 Conn. Sup. 67, 71; Viel v. Potter, 20 Conn. Sup. 173, 177; Masucio v. Platt, 8 Conn. Sup. 188, 190, 191; State v. Florence, 23 Conn. Sup. 176, 1 Conn. Cir. Ct. 161; Kaplan v. Hecht, 24 F.2d 664; Nix v. James, 7 F.2d 590, 594; note, 26 A.L.R. 399, 407.

¶7*373In view of the opinion expressed above, there is nothing for ns to resolve. The defendant’s aborted appeal and the application to ns for relief by some kind of rectification are of no avail. The order of the conrt, although inartfully termed a judgment, cannot be disturbed. We cannot reinstate an appeal which has no existence. We do not pass on the matter of forfeiture of the bond. So far as we know, the defendant is still at large, and he must first place himself personally in the custody of the law before any further proceedings regarding bail may be taken.

¶8There is no error.

¶9In this opinion Jacobs and Macdonald, Js., concurred.