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UNITED STATES v. PADEN

March 7, 1983

UNITED STATES
v.
TONEY PADEN



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE, CHARLES R. RICHEY.

 This case is before the Court for reconsideration of the Court's order revoking probation and imposing sentence on defendant Toney Paden. Immediately after sentencing defendant on August 24, 1982, the Court, concerned about whether it had jurisdiction to revoke probation, asked counsel to submit memoranda of law on the question. Subsequently, the Court issued a written order directing the parties to brief several legal issues and held an oral hearing to further develop the record in this case. Upon consideration of the additional evidence presented, the legal authorities adduced, and the Court's own independent research, the Court has decided that it lacked jurisdiction to revoke defendant's probation, and accordingly it shall vacate the sentence imposed. Because the case raises several questions of first impression in this jurisdiction, elaboration of the Court's decision is clearly warranted.

 I. THE FACTS

 The parties have stipulated to the following facts, which constitute the important sequence of events herein:

 12/17/76 Defendant was sentenced on two counts of possession of narcotics to consecutive one-year terms. Execution of sentence was suspended and he was put on probation for three years with the condition of drug treatment and testing, as directed by the Probation Office.

 7/5/77 Judge Joseph Waddy ordered the issuance of a bench warrant for a violation of the probation condition of drug treatment and ordered Magistrate Henry Kennedy to handle the hearing on violation.

 8/23/77 Magistrate Kennedy issued a Report and Recommendation not to revoke Mr. Paden's probation because he was in compliance with the drug treatment program with the Volunteers of America.

 10/21/77 Judge Waddy ordered a hearing before Magistrate Kennedy for a probation violation because of a violation of the condition prohibiting continued drug use.

 4/11/78 Magistrate Kennedy continued probation with a special condition that defendant attend in-patient drug treatment at the RAP treatment center.

 5/5/78 Based on reports that defendant had failed to appear at the RAP center, another hearing on violation of probation was scheduled before Magistrate Kennedy on this date. Because Mr. Paden did not appear at the hearing, Magistrate Kennedy issued a bench warrant for his arrest.

 In addition to these stipulated facts, the government proffered several additional ones:

 
6/13/78 Probation Officer Ardito made a home visit to defendant's residence, where he spoke with defendant's father, but not with defendant.
 
9/19/78 United States Marshalls unsuccessfully sought defendant at his residence for the first of seven times, all of which ...

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