HAMLEY, Circuit Judge.
Ray L. Johnson, an inmate of Washington State Penitentiary, appeals from an order of the district court denying his application for a writ of habeas corpus. The application was denied without issuance of an order to show cause, on the ground that it appeared from the application that Johnson was not entitled to the writ.
Several reasons why the writ should issue were asserted in the application and are renewed here. The one principally relied upon is that applicant has been subjected to double jeopardy.
On May 16, 1955, in cause No. 32138 before the superior court of Pierce County, Washington, Johnson pleaded guilty to an information charging him with the crime of assault in the first degree armed with a deadly weapon. The trial judge could then have followed one of three courses. Pursuant to RCW 9.95.010 he could have fixed the maximum penitentiary sentence to be served by Johnson at twenty years, and allowed the sentence to go into immediate effect. As an alternative, he could have fixed such maximum sentence, granted probation, and suspended execution of the sentence.
The trial court chose the latter course. By an order dated May 16, 1955, imposition of sentence was suspended and deferred for a period of four years. This was done upon certain terms and conditions set out in the order, one being that Johnson "spend eight months in the County Jail * * *." Johnson accepted the terms of probation and was confined in jail.
On April 13, 1956, after Johnson had been released from jail but while still under probationary supervision, he committed the crime of forgery in the first degree. On April 16, 1956, in Pierce County cause No. 32396, he pleaded guilty to an information charging this crime, and was sentenced to serve a maximum term of twenty years in the penitentiary.
On April 17, 1956, an order was entered in cause No. 32138 revoking deferment of the imposition of sentence. The revocation was based on the fact that Johnson had violated the terms of his probation. On the same day, after entry of the above order, a maximum sentence of twenty years in the penitentiary was imposed in cause No. 32138.
Johnson makes no attack upon the judgment and sentence on the forgery charge. It follows that if he is presently serving the sentence for the forgery conviction, his application for a writ of habeas corpus directed against the sentence for the assault conviction is premature.
The two sentences involved here are not running concurrently, since there is no provision in either of them to this effect.
This statute seems somewhat ambiguous, since it first refers to priority of convictions and then to priority of terms of imprisonment. It appears, however, to be subject to the construction that the sentence imposed for the first conviction is to be served first, without regard to which sentence was first imposed.
While the Washington Supreme Court seems not to have passed upon this question, the board of prison terms and paroles has in Johnson's own case given RCW 9.92.080 the construction suggested above. The board gave Johnson written notice on August 20, 1956, that it had fixed his minimum term of confinement at "5 yrs & 2½ yrs C S," no express statement being made as to which sentence was being served first. Under RCW 9.95.040, the duration of confinement for one convicted of a felony while armed with a deadly weapon, where there has been no previous felony conviction, may not be less than five years. Hence the "5 yrs" confinement which is listed first in the board notice must have been on the sentence for the assault conviction — the sentence which Johnson now challenges.
If the sentence on this conviction is void, then Johnson's confinement since April 17, 1956, must be regarded as on the forgery conviction. The period of confinement fixed by the board on the forgery conviction was two and a half years. The notice also indicates that by good conduct and work record Johnson
We accordingly hold that the application for a writ of habeas corpus is not premature.
This brings us to the double jeopardy question which appellant raises. On April 17, 1956, after Johnson had been confined in a county jail for eight months, he was sentenced to a maximum penitentiary term of twenty years for the same offense. If the penitentiary sentence is to be regarded as a second punishment for the same offense, Johnson would thereby have been "twice put in jeopardy of life or limb" for the same offense, as those words are used in the Fifth Amendment.
Both the jail term which Johnson served and the penitentiary sentence thereafter imposed are provided for by statute. The punishment so provided is subject to being administered in several ways: (1) As a maximum penitentiary sentence of twenty years; (2) as a maximum penitentiary sentence of twenty years, reduced by the amount of time served in jail as a condition of probation, if probation is granted and sentence is imposed but its execution suspended; and (3) as a jail term plus a maximum penitentiary sentence of twenty years if probation is granted and the imposition of sentence is suspended upon conditions which were thereafter violated.
The circumstances of Johnson's case brought him within this last category. We therefore conclude that the penitentiary sentence imposed upon Johnson for the assault conviction may not be regarded as a second punishment for the same offense. It follows that Johnson was not subjected to double jeopardy.
RCW 9.95.240 provides that every defendant who has fulfilled the conditions of his probation may be permitted, in the discretion of the court, to withdraw his plea of guilty and enter a plea of not guilty, or the court may, in its discretion, set aside a verdict of guilty. In either case, the court may then dismiss the information or indictment, and the defendant is then released from all penalties and disabilities resulting from the conviction. This statute further provides that "the probationer shall be informed of this right in his probation papers. * * *"
Appellant asserts that the court did not inform him of his rights under RCW 9.95.240, as it was required to do. Citing State ex rel. Schock v. Barnett, 42 Wn.2d 929, 259 P.2d 404, 405, to the effect that action under this statute is void if the statute is not followed, appellant argues that he has thus been deprived of due process of law.
Since appellant did not fulfill the conditions of his probation, and was not discharged from probation prior to the termination of the period thereof, he was not entitled to receive any of the benefits available under RCW 9.95.240. But he argues in effect that if he had been advised of these available benefits he would have fulfilled the conditions of his probation and so could have taken advantage of them.
Due process does not require that one subject to a criminal sentence be advised of all of the advantages he may obtain by fulfilling the conditions of his probation. Everyone is assumed to know that advantages are to be gained by obeying the law and orders of court. This being so, the fact that the court had a statutory duty to advise appellant of these advantages added nothing to his constitutional rights under the due process clause. Consequently the failure of the court to perform that duty was not a deprivation of due process. Moreover, any defect found to exist with regard to the probation procedure would not affect the validity of the penitentiary sentence which Johnson is now serving.
The remainder of appellant's argument is devoted to a discussion of the asserted lack of consistency by the district judge in dealing with applications for writs of habeas corpus. The principal objection seems to be that the district court ordered stricken substantial portions of Johnson's application on the ground that the stricken portions consisted of argumentative conclusions and quotations from statutes and cases.
The striking of the portions in question was entirely proper. Only the facts are to be alleged in such an application. 28 U.S.C.A. § 2242. As the district judge correctly stated in the order striking
Affirmed.
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