Burt v. State

823 P.2d 14, 1991 Alas. App. LEXIS 98, 1991 WL 273671
CourtCourt of Appeals of Alaska
DecidedDecember 20, 1991
DocketNo. A-3550
StatusPublished
Cited by2 cases

This text of 823 P.2d 14 (Burt v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burt v. State, 823 P.2d 14, 1991 Alas. App. LEXIS 98, 1991 WL 273671 (Ala. Ct. App. 1991).

Opinion

OPINION

COATS, Judge.

Charles T. Burt was convicted, based upon his plea of no contest, of violating his conditions of release, an unclassified felony offense with a maximum sentence of five years of imprisonment. AS 12.30.060(1). In entering his plea, Burt reserved his right to raise an appellate issue. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Burt contends that Superior Court Judge Charles K. Cranston erred in failing to dismiss the indictment against him. We affirm.

Burt was originally convicted of a felony for sexual abuse of a minor. He was ultimately sentenced to five years with all but forty-three months and fifteen days suspended. Burt was placed on probation for a period of five years following his release from custody. Burt served the unsuspend-ed portion of his sentence and was released on probation.

[15]*15Burt’s probation officer filed a petition to revoke Burt’s probation. Burt appeared in court before Judge Cranston and denied the allegations in the petition to revoke probation. Judge Cranston ordered Burt released on an unsecured bond of $10,000. Judge Cranston also set several other conditions for Burt’s release. Burt signed a document called “Order and Conditions of Release.” That document provided in part that:

If defendant fails to appear before any court or judicial officer as required, an additional criminal case may be instituted against defendant. If the failure to appear is in connection with a felony charge ... the penalty is a fine of not more than $5,000 or imprisonment for not more than five years or both.

Judge Cranston ordered Burt to appear in court on August 30, 1988, at 2:30 p.m., for an adjudication hearing on the petition to revoke probation. Burt did not appear at the hearing and Judge Cranston issued a warrant for his arrest. Burt was arrested on the warrant in February 1990.

The state indicted Burt for violating his conditions of release. Alaska Statute 12.-30.060 provides in part:

Violation of conditions. A person released under the provisions of this chapter who wilfully fails to appear before a court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for the person’s release and if the person was released
(1) in connection with a charge of felony, or while awaiting sentence or pending appeal after conviction of an offense, is guilty of a felony and upon conviction is punishable by a fine of not more than $5,000 or by imprisonment for not more than five years, or by both....

(Emphasis provided.)

Burt raises a two-pronged attack on his indictment. He first contends that he was not released “in connection with a charge of felony.” He quotes from Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (footnote omitted):

A probation revocation hearing is not a criminal proceeding. The focus of the hearing should be to determine whether the probationer violated one or more of the conditions of his probation and the appropriate disposition in the event it is determined that petitioner violated his probation.

This contention appears to be answered by our recent decision in State v. Stores, 816 P.2d 206 (Alaska App.1991). In that case, Stores, a parolee, was charged with second-degree escape for running away from an officer who arrested him for a parole violation. Under AS 11.56.310, a person is guilty of escape in the second degree if, without lawful authority, he removes himself from “official detention for a felony.” Stores argued that his arrest on a parole violation was not “for a felony.” We disagreed, pointing out that the great weight of authority was to the effect that when Stores was arrested for a parole violation he was being arrested on his original felony charge. 816 P.2d at 209-10. In the process of arriving at this decision, we cited State v. Perencevic, 54 Wash.App. 585, 774 P.2d 558 (1989). Perencevic was a probationer who was being detained in jail on warrants for probation violations which arose out of his prior felony convictions. Perencevic attempted to escape, and was charged under a statute which had as an element that Perencevic was being “detained pursuant to a conviction of a felony.” The Washington court concluded that when a probationer was being detained in jail for probation violations, he was being “detained pursuant to a conviction of a felony.” Following Stores and Perencevic, we conclude that Burt was being held “in connection with a charge of felony” when he was held for á probation violation on a felony offense.

Burt next contends that he was not “released uhder the provisions of this chapter.” Burt cites Martin v. State, 517 P.2d 1389, 1397-99 (Alaska 1974), as support for his position that he was not released under the Alaska Bail Act, AS 12.30, but was rather released under the inherent power of the court. In Martin, the supreme [16]*16court decided the rights of various defendants to release on bail under Alaska law. One of the cases which the court decided was the right to bail of a defendant who was facing probation revocation proceedings. The court stated:

We do not interpret Article I, section 11 of the Alaska Constitution to extend the right of bail to probation revocation proceedings. While the Alaska Constitution and statutes insure to the accused in all criminal prosecutions a right to bail, Martin was not the accused in a criminal prosecution at the time he requested bail from the trial court.
Nor do we find that appellant was entitled to bail under the Alaska Bail Act. His reliance on AS 12.30.010 is misplaced, because the right to bail under this statute is guaranteed prior to conviction. When a defendant reaches the status of a probationer, he can no longer claim the right to bail protected by AS 12.30.010. Nor can he claim bail under the probation statutes, since they fail to mention bail, and AS 12.-30.040, which provides for release after trial is limited in application to convicted persons awaiting sentence or whose appeal is pending.
While we hold that appellant Max Ray Martin was neither entitled to bail under the Alaska Constitution nor the Alaska Bail Act, we suggest bail should be withheld pending revocation proceedings only in unusual cases. Trial judges have wide latitude in imposing suitable conditions for prehearing release, other than the denial of bail.

Id. at 1398 (footnotes omitted; emphasis provided). We have interpreted Martin as “recognizing an inherent power in the trial courts to grant bail where no statute or constitutional provision expressly authorizes or prohibits it.” Stiegele v. State, 685 P.2d 1255, 1261 (Alaska App.1984); Dobrova v. State, 674 P.2d 834 (Alaska App.1984), aff'd, 694 P.2d 157

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Bluebook (online)
823 P.2d 14, 1991 Alas. App. LEXIS 98, 1991 WL 273671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burt-v-state-alaskactapp-1991.