United States District Court, Eastern District of Illinois
November 17, 1966
EDWARD W. BELL, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Juergens, Chief Judge.
MEMORANDUM AND ORDER
Edward W. Bell files his petition for writ of replevin and
asks to proceed in forma pauperis. The petition being
accompanied by appropriate affidavit, the motion to proceed in
forma pauperis will be granted.
The petition alleges that petitioner appeared in the
District Court of Roanoke, Virginia, on May 10, 1965; that the
grand jury returned a true bill against him; that subsequently
on May 20, 1965, he entered a plea of guilty and was sentenced
to four years; that the sentence was suspended and petitioner
was placed on probation for three years and fined the sum of
$1,000.00 to be paid at the rate of $100.00 per month, and
that restitution in the amount of $174.59 be made during the
period of probation; that petitioner asked and was granted
permission to reside in the City of East St. Louis, Illinois;
that on or about June 1, 1966, petitioner was advised to
appear in the United States District Court in East St. Louis,
Illinois, for a hearing on violation of probation; that on
June 29, 1966 this court revoked and set aside the probation
and sentenced the petitioner to four years in prison.
Petitioner further alleges that the court in sentencing the
petitioner stipulated that the petitioner was to pay a fine of
$1,000.00 as a part of a probationary sentence imposed by the
court; that the petitioner complied with the dictates of the
court and did pay the thousand dollars; however, as soon as
the petitioner did pay this thousand dollars, the petitioner
was called into court for a hearing for violation of
probation; that subsequently, petitioner was sentenced to a
term of four years and all time previously was held for
Petitioner asserts that he is therefore entitled to
reimbursement of his thousand dollars.
Even if the allegations of the petition were true as set
forth, the petitioner is not entitled to the relief he asks.
After conviction of an offense carrying the penalty of both
fine and imprisonment, the court is authorized to impose a
fine, either as a matter of punishment or as a condition of
probation, and at the same time suspend the imposition of a
sentence of imprisonment or impose
such sentence of imprisonment and suspend its execution. In
enacting the probation statute, Congress intended to authorize
the imposition and require the payment of a fine in either of
the alternatives provided by the statute. Mitchem v. United
States, 193 F.2d 55 (5th Cir., 1951). Accordingly, if the fine
had been imposed merely as a condition of probation and the
fine paid, this did not deprive the court of jurisdiction to
enforce the rules of probation, and when petitioner violated
his probation, the court had jurisdiction to revoke the
probation for cause, which this court did.
The judgment and order of probation entered by the Honorable
Ted Dalton, United States District Judge for the Western
District of Virginia, Roanoke Division, provides in pertinent
parts as follows:
"IT IS ADJUDGED that the two counts of the
indictment are herewith consolidated for
sentencing purposes. IT IS ADJUDGED that the
defendant is hereby committed to the custody of
the Attorney General or his authorized
representative for a term of FOUR (4) YEARS and
fined the sum of $1,000.00. The execution of the
sentence as to imprisonment only is suspended and
the defendant placed on probation for a period of
THREE (3) YEARS on the following terms and
1. that the defendant make restitution in the
sum of $174.59.
2. that the fine of $1,000.00 be paid at the
rate of $100.00 each month beginning June 1,
1965, and a like amount the first of each
month thereafter until the entire fine of
$1,000.00 is paid in full.
"IT IS FURTHER ORDERED that during the period
of probation the defendant shall conduct himself
as a lawabiding, industrious citizen and observe
such may prescribe. Otherwise the defendant may
be brought before the court for a violation of
the court's orders."
The trial court had jurisdiction under the criminal code to
enter the sentence of fine and imprisonment, and under the
provisions of the probation statute he had the authority to
suspend the execution of the sentence as to either the fine or
the imprisonment or as to both, as he in his judgement deemed
proper. Contrary to the petitioner's assertions, the trial
judge imposed a sentence of four years imprisonment pursuant
to the statute, which he suspend, and he also assessed a fine
as a part of the punishment prescribed. That the defendant has
completed that the part if the sentence providing a fine by
paying the finedoues not relieve him conduct during the
At any time during the course of the probationary period
that the petitioner was found guilty of violating the
conditions of his probation, the probation was subject to
revocation and he was then subject to be incarcerated puruant
to the unpaid part of his sentence. This did not relieve him
of that part of the sentence imposing the fine of $1,000.00.
It is, therefore, the order of this Court that the
petitioner be and he is hereby permitted to file his petition
for writ of replevin in forma pauperis and the payment of
It is the further order of this Court that the petition for
writ if replevin be the same is hereby denied.
It is the further order of this Court that the Clerk send to
the petitioner a copy of this order.
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