
    Ex Parte Miles.
    (Decided January 13, 1930.)
    
      Mr. Robert Fosdick, for petitioner.
    
      Mr. Nelson Schwab, prosecuting attorney, and Mr. H. L. Britton, for the State.
   Cushing, P. J.

The petitioner, John Clifford Miles, seeks release through a writ of habeas corpus from serving a three-year sentence in the penitentiary, imposed by the court of common pleas of Hamilton county on December 14, 1929, for the claimed reason that the sentence under the terms of the probationary statutes is null and void.

The record which is before us shows that on February 5,1927, the petitioner pleaded guilty to an indictment for forgery. The record then reads: “Whereupon sentence herein is deferred for a period of one year, and August Reinhardt is appointed as a special Probation Officer, and defendant is to report to said Probation Officer until further order of Court.”

On February 10, 1928, which was five days after the expiration of the one-year probation period pronounced, the record discloses that the following entry was made: 1 ‘ This cause coming on to be heard and it appearing to the court that John Clifford Miles the defendant herein was heretofore indicted on the charge of forgery, and was on the 5th day of February, A. D. 1927, given a deferred sentence of twelve months, and the court being fully advised in the premises, for good cause shown it is ordered, adjudged and decreed that sentence herein be and the same is hereby deferred for an additional period of twelve months.”

On December 14,1929, which was about ten months after the second twelve months’ period had expired, defendant was brought before the court, and it was “ordered and adjudged by the court that the defendant John Clifford Miles be imprisoned and confined in the Ohio State Penitentiary at Columbus, and kept at hard labor, but without solitary confinement, for a period of three years * *

It is from this last sentence of three years’ imprisonment that the petitioner seeks his release.

The sections of the General Code involved are 13710 and 13711, 111 Ohio Laws, 428.

Section 13710 provides for the probation of a prisoner.

Section 13711 provides:

‘ ‘ The probation provided for in this chapter shall continue for such period as the trial court or the magistrate shall determine, not exceeding the maximum term or terms of imprisonment, if any, for which he might he sentenced, and in any event not to exceed five years.
“During such probationary period any field officer or probation officer may arrest the defendant without a warrant and bring him before the court or magistrate having power to impose sentence.”

The section then provides: “When the defendant is brought before the court or magistrate, such court or magistrate shall immediately inquire into the conduct of the defendant and may terminate the probation and impose any sentence which might originally have been imposed, or continue the probation and remand the defendant to the custody of the probation authority. * * * At the end or termination of the period of probation, the jurisdiction of the court or magistrate to impose sentence shall cease and the defendant shall thereupon be discharged.”

Thus it will be seen that the law gives the court the right to fix the time of probation. That was done in this case by the court fixing the time of one year. It further provides that during the probationary period he may be brought before the court. That was not done in this case. The record discloses that five days after the termination of the probationary period, as fixed by the court, the court did make a second order of probation of one year.

The law as heretofore quoted provides that at the end or termination of the period of probation the jurisdiction of the court or magistrate to impose sentence shall cease, and the defendant shall thereupon be discharged. Clearly, under the facts here, the jurisdiction of the court to impose sentence ceased at the expiration of the first year’s probation, and, the defendant not being brought in during the period of probation, the court lost jurisdiction to impose sentence under the statute.

If anything is claimed for the second probationary period, the situation would be the same, since he was not brought in during the second probationary period, but ten months thereafter.

In the case of In re Application of Nunley, 102 Ohio St., 332, 131 N. E., 495, these sections of the statute were considered by the Supreme Court of Ohio. In the course of the memorandum opinion the court said, at page 335 of 102 Ohio State, 131 N. E., 495, 496: “the jurisdiction of the court, upon suspending the sentence, is continuing during the time limit of the suspension, and not exceeding two years; # # # if ke violates his parole while under suspension, the court, by the provisions of this enactment, has ample power to terminate the suspension and impose sentence * *

We quote further from the opinion: “A court may pronounce sentence, when? At any time during the period of suspension as previously fixed by the court; but in no case, of course, exceeding two years. ’ ’

In view of the above it becomes apparent that the petitioner is clearly entitled to his discharge, as the court was without jurisdiction to impose the sentence.

An entry may be presented discharging the petitioner from custody.

Decree accordingly.

Hamilton and Ross, JJ., concur.  