(concurring)
18 U.S.C.A. § 724 authorizes the courts of the United States having original jurisdiction of criminal actions (except in the District of Columbia), after a conviction or plea of guilty or nolo contendere for any offense not punishable by death or life imprisonment, “to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.” It also authorizes the court, which has granted probation, to revoke or modify any condition of probation and to change the period of probation. But it expressly provides .that “the period of probation, together with any extension thereof, shall not exceed five years.”
After providing for the arrest of a probationer without a warrant within the probation period, 18 U.S.C.A. § 725 provides that “at any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the cou'rt,” and that “thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.”
Section 725, supra, further provides that “when directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may there-, upon discharge, the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable.”
While obviously the better practice for a court, which grants probation, is to fix a definite period of probation, when none is fixed, it seems to me that period will run for the full five-year maximum fixed by the statute, unless the court, prior to the expiration of the five-year period, upon a report of the probation officer, acting pursuant to § 725, supra, discharges the probationer from further supervision.
It is my view, therefore, that it cannot be said that the violation of the probation order did not occur within the probation period, since there was no showing that the court had discharged the probationer, the petitioner here, from further supervision or terminated the proceedings against him, at the time the violation of the probation order occurred, and such violation occurred within the five-year period.
But I cannot accept the view, apparently approved in the majority opinion, that the court may revoke the probation for con*927duct which occurred after the expiration of the probation period fixed by the order of probation or any lawful extension thereof, or for conduct occurring after the court has discharged the probationer from further supervision and terminated the proceedings against him, but which occurred within the maximum period for- which the defendant might originally have been sentenced.1
The court may not revoke an order of probation until it has judicially determined, after affording the probationer a hearing, that the probationer’s conduct during the period of probation has not conformed to the conditions and terms of the probation order.2
Under many federal criminal statutes, the maximum sentence which may be imposed is ten years; and certain federal penal statutes provide for maximum sentences of fifteen years, others twenty years, and still others twenty-five years.
Did Congress intend that the court in the order of probation should fix the period of probation for a term not in excess of five years, but where the maximum sentence that could be imposed is ten, fifteen, twenty, or twenty-five years, that the actual period of probation is measured by the maximum sentence that could have been imposed and that the probationer should remain under the supervision of the court for the period equal to the maximum sentence that could have been imposed? If so, where the maximum sentence which could be imposed exceeds five years, an order placing the defendant on probation for a period not exceeding five years would serve no useful purpose and would mislead the defendant as to the period of his actual probation and supervision.
I think the Congress, in providing that the period of probation, together with any extension thereof, should not exceed five years, indicated its judgment that five years was long enough to subject a person who is a fit subject for probation, to the terms and conditions of an order of probation. Hope for release from the terms and conditions of probation and supervision under an order of probation is an incentive for rehabilitation which is the object of probation. On the contrary, subjecting the probationer to probation and supervision for ten, fifteen, twenty, or twenty-five years would tend to discourage the probationer and might hinder, rather than aid, rehabilitation of the probationer.
If the actual probation period is the maximum period for which the probationer could have been sentenced, when such maximum period is greater than the period fixed by the order of probation, then a defendant might be placed on probation for five years, with stringent terms and conditions imposed, and if the maximum sentence for which he could have been sentenced was fifteen years, he might be arrested for conduct, not criminal in itself but violative of the terms of probation, occurring fourteen years after the order of probation and sentenced to imprisonment for a term of fifteen years. It is no answer to say that a judge would not, under such circumstances, revoke the probation and impose the sentence. The question is, did Congress intend to grant such tremendous power? I think it did not.
What, then, is the purpose of the provision in § 725, supra, that the court may revoke the probation at any time within the period of probation fixed by the order of probation or within the maximum period for which the defendant might have been originally sentenced, if such period is longer than such probation period, and impose any sentence which might have been originally imposed?
In seeking the answer to that question, it should be observed that § 725, supra, does not in terms authorize the court to revoke the probation or the suspension of sentence for conduct in violation of the terms and conditions of probation occurring after the end of the probation period. It only authorized the court to enter its order of revocation, either during the probation period or during the maximum period for which the defendant might originally have *928been sentenced, if such maximum period is longer than the probation period. It deals with the time the order of revocation may be entered, not with the violation of the order of probation upon which revocation may be predicated, nor the time when such violation must occur.
It seems fairly obvious to me that the purpose of such provision was to make plain that'the jurisdiction of the court over the probationer, to revoke probation for a violation of the order of the probation occurring during the period of probation fixed by the order of probation, continued after such period of probation had terminated, where the maximum sentence which could have been imposed was longer than such period of probation, but to limit the time within which such jurisdiction might be exercised to the period of such maximum sentence. So construed, the two sections are harmonious.
Hence, it is my opinion that revocation of probation can only be predicated on a violation of the terms and conditions of the order of probation, occurring during the period of probation fixed by the court pursuant to § 724, supra.
See Sanford v. King, 5 Cir., 136 F.2d 106.
Hollandsworth v. United States, 4 Cir., 34 F.2d 423, 428; Mankowski v. United States, 5 Cir., 148 F.2d 143, 144; United States v Van Riper, 2 Cir, 99 F.2d 816. 819: Escoe v. Zerbst, 295 U. S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566.