State Ex Rel. Carlton v. Haynes

552 S.W.2d 710, 1977 Mo. LEXIS 264

• Court: Supreme Court of Missouri
• Decided: June 14, 1977
• Docket: 59838
• Status: Published

Opinions

DONNELLY, Judge.

Petitioner brought this action seeking a writ of habeas corpus. The writ was ordered issued and counsel was appointed for petitioner. Petitioner is presently in the custody of the Missouri Department of Corrections and confined at the Missouri State Penitentiary in Jefferson City, Missouri.

On July 9, 1970, petitioner pleaded guilty to first degree robbery before Judge James F. Nangle in the Circuit Court of the City of St. Louis. On October 22, 1970, Judge Nangle, according to the record, suspended imposition of sentence and petitioner was placed on three years’ probation.

On April 3, 1973, Judge Nangle ordered petitioner’s probation revoked; however, on April 13, 1973, Judge Nangle ordered the revocation be “disregarded” and reinstated petitioner’s probation for a term which would expire on October 22, 1975, thereby extending the original period of probation by two years.

On February 11, 1974, petitioner was accepted into a “half-way house” known as Archway House in St. Louis, Missouri. Petitioner agreed with his probation officer that he would reside there subject to the rules and regulations of the facility. On or about March 29, 1974, petitioner was granted a week-end furlough from Archway House from which he failed to return. On April 15,1974, petitioner’s probation officer issued a probation violation warrant because petitioner was absent from Archway House without permission. Petitioner returned to Archway House of his own volition on May 20,1974, but left again on June 23, 1974.

On September 10, 1974, petitioner failed to appear in Circuit Court at his probation revocation hearing. On May 5,1975, a capi-as warrant was issued by the Circuit Court for the arrest of the petitioner. Petitioner’s probation officer also issued another probation violation warrant for petitioner. On August 6, 1975, petitioner was arrested on several charges, including probation violation. Petitioner was hospitalized subsequent to his arrest and the probation revocation hearing, set for September 12, 1975, was continued because of petitioner’s illness.

Eventually, a revocation hearing was held on October 27, 1975, five days after petitioner’s probation was to expire under the extension ordered by Judge Nangle on April 3, 1973. Petitioner appeared represented by counsel, at the revocation hearing before Judge Thomas W. Challis. As a result of the evidence presented at the hearing, Judge Challis revoked petitioner’s probation for several reasons enumerated in the findings and order of the court. Further, the court ordered that petitioner be brought before the court for imposition of sentence on the charge of first degree robbery to which petitioner entered a plea of guilty on October 22,1970. On December 1, 1975, the petitioner appeared before Judge Challis who imposed a sentence of ten years imprisonment, suspended execution of the sentence, and placed petitioner on another term of probation for three years.

On March 29, 1976, petitioner was convicted and sentenced on a charge of common assault in the St. Louis Court of Criminal Corrections. Once again execution of sentence was suspended and petitioner was placed on probation. Two days later, a probation violation warrant authorizing the apprehension of the petitioner was issued by his probation officer.

Finally on April 23, 1976, petitioner appeared with counsel once more at a probation revocation hearing before Judge Challis. Petitioner’s probation was ordered revoked for the reason that he had been convicted of common assault and had thereby violated the laws of this state which, of course, also constituted a violation of petitioner’s conditions of probation. Judge Challis ordered execution of the ten-year sentence he had previously imposed.

The center of controversy in this case involves the statutory construction and interrelationship of §§ 549.071, .101, and .111, RSMo 1969, as amended, which read as follows:

“549.071. Parole and probation may be granted, when — terms, length of— extensions

“1. When any person of previous good character is convicted of any crime and commitment to the state department of correction or other confinement or fine is assessed as the punishment therefor, the court before whom the conviction was had, if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion, by order of record, suspend the imposition of sentence or may pronounce sentence and suspend the execution thereof and may also place the defendant on probation upon such conditions as the court sees fit to impose. The probation shall be for a specific term which shall be stipulated in the order of record. In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.

“2. The courts, subject to the restrictions herein provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed, will, if permitted to go at large, not again violate the law, parole the defendant upon such conditions as the court sees fit to impose. Added Laws 1963, p. 671, § A(§ 3), as amended Laws 1967, p. 668, § 1.

“549.101. Arrest of person on probation or parole — revocation of probation or parole — costs—second probation or parole

“1. The court granting probation or parole may at any time before order of discharge without notice to the defendant order his apprehension by the issuance of a warrant for his arrest and his appearance in court forthwith. Any probation or parole officer assigned to or serving the' court or judge having jurisdiction may arrest such defendant without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. The written statement delivered with the defendant by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the defendant. After making an arrest the probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. The court may in its discretion with or without hearing, order the probation or parole revoked and direct that the sentence theretofore imposed be commenced and order execution thereof or in the event imposition of- sentence was suspended the court may pronounce sentence and order execution thereof. The court may in its discretion, order the continuance of the probation or parole upon such conditions as the court may prescribe. The court in its discretion may order the allowance in mitigation of the sentence credit for all or for part of the time the defendant was upon probation or parole.

“2. After probation or parole has been revoked, as provided in subsection 1, the court may in its discretion require the payment of all costs in the case and may grant a second probation or parole, but no more than two probations or parole shall be granted the same person under the same judgment of conviction. Laws 1963, p. 671, § A (§ 6), as amended Laws 1965, p. 664, § 1.

“549.111. Absolute discharge of person on probation or parole — citizenship restored — order of discharge to indicate restoration of rights

“1. When a defendant who has been placed upon probation or parole for the term prescribed by the court, and the court granting the probation or parole is satisfied that the reformation of the defendant is complete and that he will not again violate the law, the court shall, by order of record, grant his absolute discharge. When a defendant has completed the term of probation prescribed by the court, if the original order of probation has not been amended, modified, extended or revoked by the court, he shall automatically be absolutely discharged from the probation and from the supervision of the board of probation and parole and the court shall so note by order of record. The order operates as a complete satisfaction of the original judgment by which the fine or jail sentence or commitment to the state department of corrections was imposed or suspended.

“2. Any defendant who receives his final discharge under sections 549.058 to 549.161 shall be restored all the rights and privileges of citizenship. The court granting the final discharge shall supply the defendant with a copy of the order terminating probation, which shall clearly indicate that all the rights and privileges of citizenship have been restored. The court shall also send a copy of the order of final discharge to the board of probation and parole if the defendant has been under the supervision of the board. Added Laws 1963, p. 671, § A (§ 7), as amended Laws 1967, p. 668, § 1.”

Petitioner first contends that the circuit court was without jurisdiction to hold the revocation hearing that took place on October 27,1975. Petitioner points out that the term of his probation expired on October 22, 1975, five days before the hearing, and since his period of probation had been extended once already by Judge Nangle, on April 13, 1973, it could not be extended again. According to petitioner, by holding the hearing after the date his probation expired, the court in effect granted a second extension of his probation in order to retain its jurisdiction in the matter and such an extension is impermissible under § 549.071.1, which prohibits any court from granting more than one extension of any probation.

The undisputed facts of this case, relevant to this point, show both the issuance of the warrant for petitioner’s arrest and his apprehension for probation violation occurred during his probation. Moreover, a hearing had been scheduled before the expiration of the probationary period, but was continued due to petitioner’s hospitalization and consequent inability to appear before the court. In order to have prevented petitioner from being “automatically” and “absolutely discharged” by the expiration of his term of probation, as mandated by § 549.-111.1, RSMo 1969, petitioner maintains the trial court could only have summarily revoked his probation prior to its expiration.

While it may be conceded that summary revocation as was employed in Brandt v. Percich, 507 S.W.2d 951 (Mo.App.1974), would prevent the court from losing jurisdiction at the conclusion of the period of probation, it is not the sole means by which the court may retain jurisdiction over a probationer, who through no fault of the court or prosecutorial authorities, would have been unavailable or unable to appear at a revocation hearing if such a proceeding had been held before the expiration of the probation period.

Although “we recognize the vital significance of the fixed period of probation to probationers” in terms of creating an expectation of regaining one’s liberty, we can envision that “a revocation can occur after the probationary period only if the violation is one that occurred during that period and if formal revocation procedures — usually the issuance of an arrest warrant — are initiated during-that period.” United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974). The jurisdiction of the circuit court attached upon the execution of the warrant by arrest. At that instant the court acquired control of the person of the defendant for the purposes of the revocation proceedings. State ex rel. Lamar v. Impey, 283 S.W.2d 480, 483 (Mo. banc 1955). Of course, no unreasonable delay should occur in affording the probationer a hearing. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 484 (1972); Moore v. Stamps, 507 S.W.2d 939, 950-951 (Mo.App.1974).

In conclusion on this point we find that the issuance of the warrant within a reasonable time after the court learned of the probation violation, and the execution of the warrant within a reasonable time after its issuance, vested the court with jurisdiction over the person of the petitioner, and such jurisdiction was not divested by the postponement for good cause of the revocation hearing until a date after the expiration of petitioner’s term of probation, unless the resulting delay was unreasonable and prejudicial to the petitioner. See, Gag-non, supra; Morrissey, supra. “In any event petitioner is not entitled to relief by reason of . any delay in holding the final revocation hearing unless he was prejudiced thereby. And the burden is upon him to make such a showing.” Ewing v. Wyrick, 535 S.W.2d 443, 445 (Mo. banc 1976). Petitioner made no such demonstration of prejudice.

Secondly, petitioner suggests that there is a conflict between §§ 549.071 and 549.101, RSMo 1969, since § 549.071.1, with reference to granting probation, limits the length of any probation to a maximum term of five years and prohibits extending any person’s probation more than once. On the other hand, § 549.101 concerns the alternatives available to the court when considering revocation of probation. Under § 549.101.2 the court may, after revocation of a person’s probation, grant a second probation. Petitioner contends that the legislature intended that under no circumstances should a person serve more than five years’ probation for any one judgment of conviction. Furthermore, petitioner argues since § 549.071.1 was enacted in 1967 and § 549.-101.2 was enacted in 1965, the later enactment of § 549.071.1 prevails and by implication repeals § 549.101.2.

We believe the two sections are in pari materia and must be harmonized, if this can be done. In State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 1143, 181 S.W.2d 496, 499 (banc 1944), this Court said:

“. . . Statutes are in ‘pari materia’ when they are upon the same matter or subject. 31 C.J., p. 358; and the rule of construction in such instances proceeds upon the supposition that the several statutes relating to one subject were governed by one spirit and policy and were intended to be consistent and harmonious in their several parts and provisions.”

While it is true that under § 549.-071.1 a person cannot be ordered to serve more than five years on any one term of probation, a court may order a person to serve two terms of probation under the authority of § 549.101.2. Thus, a court may lawfully order a person to serve more than five years’ probation when, as in the instant case, the court revokes the probation granted after judgment of conviction but before imposition of sentence, and imposes the sentence, but then suspends execution of the sentence and grants a second probation as provided for by § 549.101.2. This procedure followed by Judge Challis on December 1, 1975, fully comported with one of the authorized alternatives available to a judge following revocation of a person’s probation and for that reason petitioner is not entitled to discharge under § 549.111.1.

Lastly, petitioner maintains that the sentencing procedure in this cause was irregular and excessive. We may not address this contention in an action brought to obtain a writ of habeas corpus since a motion filed pursuant to our Rule 27.26 is the exclusive procedure by which to attack and have corrected or vacated an unlawful sentence. Wiglesworth v. Wyrick, 531 S.W.2d 713, 715-716 (Mo. banc 1976).

Accordingly the writ of habeas corpus is quashed and petitioner is remanded to the custody of the respondent.

MORGAN, HENLEY and FINCH, JJ., concur. BARDGETT, J., concurs in result. SHANGLER, Special Judge, concurs in result in separate opinion filed. SEILER, C. J., dubitante by reason of Smith v. Carnes, 481 S.W.2d 243 (Mo. banc 1972). RENDLEN, J., not sitting.