Neal v. United States

571 A.2d 222, 1990 D.C. App. LEXIS 51, 1990 WL 26351
CourtDistrict of Columbia Court of Appeals
DecidedMarch 12, 1990
Docket87-1087
StatusPublished
Cited by6 cases

This text of 571 A.2d 222 (Neal v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neal v. United States, 571 A.2d 222, 1990 D.C. App. LEXIS 51, 1990 WL 26351 (D.C. 1990).

Opinions

NEWMAN, Associate Judge:

Neal contends that the trial court erred in denying his motion to discharge him from the court’s probation order, dismiss the charge against him, and expunge the record, as provided under D.C.Code § 33-541(e) (1988 Repl.), rather than to enter an adjudication of guilt against him. Because Neal’s probation term had expired at the time he filed his motion and the trial court had done nothing to extend the term, we find that the trial court lacked jurisdiction to enter an adjudication of guilt. Accordingly, we reverse with instructions to discharge Neal from probation, dismiss the charge against him, and expunge the record.

[224]*224On April 29, 1986, Anthony Neal entered a guilty plea to the charge of Possession of a Controlled Dangerous Substance, a misdemeanor under D.C.Code § 33-541(d).1 As a first-offender under that statute, Neal qualified for a sentence of probation without adjudication of guilt under D.C.Code § 33-541(e)(l) (1988 Repl.) § 33-541(e)(l), which is discretionary with the trial court, entitles such first-offenders to have the charge against them dismissed, without entry of adjudication of guilt, and the record expunged, upon successful completion of a probation term not to exceed twelve months.2 On June 13, 1986, Neal was sentenced to twelve months of supervised probation, conditioned upon his obtaining employment and treatment for drug dependency. On May 7, 1987, the District of Columbia Probation Department filed a violation notice in the trial court, indicating that Neal had missed several appointments, had not maintained regular employment, and, although he had initially tested negative for drug use during urine surveillance, had tested positive for PCP and cocaine in January and in April 1987. Neal’s probation officer recommended that the court issue an order requiring Neal to show cause why his probation should not be revoked. However, no action was taken by the trial court in response to the report and recommendation, and no show cause order was issued.

On June 12, 1987, the close of Neal’s probationary term, he filed a motion for discharge of probation, dismissal of the charge, and expungement of the record. The government opposed Neal’s motion and asked the court to strike the probation without entry of adjudication order and to adjudicate Neal guilty. After holding a hearing on the motion, the trial court denied Neal’s motion and entered an adjudication of guilt against him on August 20, 1987.

' After oral argument, we ordered the parties to submit supplemental briefs on two issues: whether the trial court’s order denying discharge and expungement and entering adjudication of guilt was appealable, and whether the trial court retained jurisdiction to enter an adjudication of guilt beyond the expiration of Neal’s probationary term. We also invited the Public Defender Service to file a brief amicus curiae,3 We find that the order is appealable [225]*225and that the trial court lacked jurisdiction to enter an adjudication of guilt.4

I.

An order entering adjudication may be appealed, provided it is final. In a case such as this, since no further litigation in the trial court was contemplated by these parties, the requirement of finality is met. See West v. United States, 346 A.2d 504, 505 (D.C.1975) (“A decision in a criminal case is final for appellate purposes ... when the litigation between the parties is terminated and nothing remains but enforcement by execution of what has been determined.”). Moreover, this court specifically has held that orders under § 33-541(e) are appealable. Mozingo v. United States, 503 A.2d 1238, 1240 (D.C.1986) (order of probation under § 33-541(e)(l) had all necessary characteristics of finality to be appealable). Finally, this case involves revocation of a probation order, and this court has heard appeals from such orders before. Wallace v. United States, 475 A.2d 401 (D.C.1984); Dent v. District of Columbia, 465 A.2d 841 (D.C.1983).5

II.

Under D.C.Code § 24-104 (1989 Repl.), which governs discharge, continuance, modification, and revocation of probation, the jurisdiction of a trial court to revoke probation is limited by the probationary term.6 It is settled law that no action to revoke probation may be taken beyond the last day of the probation term, unless the court has acted in some way within the term to extend the term or preserve its jurisdiction. See, e.g., Wallace v. United States, supra, 475 A.2d 401 (ex parte order issued seven days before expiration of probationary term sufficient to temporarily extend probation period); Dent v. District of Columbia, supra, 465 A.2d 841 (issuance of rule to show cause sufficient to toll expiration of probation); Cooper v. United States, 48 A.2d 771 (D.C.1946) (periodic formal extensions by the trial court kept probation alive). Compare Jones v. United States, 560 A.2d 513 (D.C.1989) (trial court’s failure to take any steps during probationary term to preserve its authority resulted in termination of its jurisdiction at close of the term). Moreover, it is the court itself which must take the action; actions by the probationer are not enough. Sumpter v. United States, 564 A.2d 21 (D.C.1989) (acts of concealment by defendant regarding violations during his probation term and not discovered by the court until after the expiration of the term did not extend or preserve the trial court’s jurisdiction). Similarly, we now hold that actions by governmental agencies, like the filing of a report by the Probation Department in this case, do not extend the reach of the court’s jurisdiction beyond the expiration of the probationary term.

The government contends that these principles and precedents do not apply here, because — the government says — the language of § 33-541(e)(l), under which Neal’s probation was granted, expressly or [226]*226implicitly extends the court’s jurisdiction beyond the probationary term. In support of this contention, the government points to the following language in the statute:

If during the period of probation such person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge such person and dismiss the proceedings against him or her.

D.C.Code § 33

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Neal v. United States
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Bluebook (online)
571 A.2d 222, 1990 D.C. App. LEXIS 51, 1990 WL 26351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-united-states-dc-1990.