In re Quinn

This case presents the question of whether a resentence pursuant to Penal Code section 1170, subdivision (d) relates back to the date of the original sentence. We conclude that it does and annul an order revoking probation made after petitioner’s probationary period had expired.

On December 3, 1982, petitioner was sentenced to state prison for a term of two years and eight months following his plea of guilty to three counts of attempted arson. After a timely recall of sentence, petitioner was resentenced on April 26, 1983, pursuant to Penal Code section 1170, subdivision (d). This provision reads as follows:

*181 Upon resentencing, the court placed petitioner on probation for a term of five years upon condition he serve a period of six months in a psychiatric hospital. Petitioner’s probation was summarily revoked on April 22, 1988, on motion of the district attorney. Petitioner filed a petition for writ of habeas corpus in San Francisco Superior Court arguing that he should have credit on his probation for time spent in custody and that, thus, he was not still on probation on April 22. The superior court refused to accept the argument that a period of probation could be…