State v. Windels

503 N.W.2d 834, 244 Neb. 30, 1993 Neb. LEXIS 209
CourtNebraska Supreme Court
DecidedAugust 13, 1993
DocketS-92-137
StatusPublished
Cited by4 cases

This text of 503 N.W.2d 834 (State v. Windels) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Windels, 503 N.W.2d 834, 244 Neb. 30, 1993 Neb. LEXIS 209 (Neb. 1993).

Opinions

Per Curiam.

Upon a plea of guilty to first-offense driving while intoxicated, the defendant was placed on probation for 1 year beginning October 3, 1989. The defendant was ordered to abstain from the use of alcoholic beverages, to obtain [31]*31evaluation for chemical dependency from an accredited agency within 30 days, to pay any fees, to follow all recommendations, and to successfully complete any recommended programs.

On September 28, 1990, the Douglas County Court issued a warrant for the defendant’s arrest for violation of probation. On October 1, 1990, an affidavit alleging the defendant’s violation of probation was filed in the county court. The return on the warrant states that on October 3, 1990, notice of the warrant was mailed to the defendant’s address by regular U.S. mail without return receipt requested.

Apparently, the defendant did not learn of the existence of the warrant until April 27, 1991, when he turned himself in. A hearing on the violation of probation was held on June 13, 1991. Although the defendant stipulated that he had consumed alcohol while on probation and had failed to attend 45 Alcoholics Anonymous meetings, he contended the county court should dismiss the charge because the State made no diligent effort to serve proper notice on him.

The county court found the defendant guilty of violation of probation, and he was sentenced to jail for 30 days and ordered to pay a fine of $500. The defendant’s driver’s license was suspended for 180 days from the date of discharge from jail or payment of the fine.

The defendant appealed to the district court, where the judgment was affirmed.

The defendant then appealed to the Nebraska Court of Appeals and assigned as error the district court’s affirmance of his conviction. He argued that the district court erred in affirming the judgment because the State had failed to execute and serve the warrant in a timely fashion, which deprived the defendant of a prompt hearing as required by Neb. Rev. Stat. § 29-2267 (Reissue 1989), and because prosecution of the violation was barred by Neb. Rev. Stat. § 29-1207 (Reissue 1989).

The Court of Appeals found:

The warrant was mailed to Windels at his last known address October 3, 1990. However, Windels did not turn himself in until April 27,1991. As we construe the facts in favor of the State, it can be inferred that Windels knew [32]*32about the warrant and that he caused the delay. Under the facts presented here, the procedure to revoke Windels’ probation commenced prior to the end of his probationary period. After Windels turned himself in on April 27, a hearing was afforded him in a prompt and reasonable manner on June 13,1991.

State v. Windels, 2 NCA 283, 286 (1993).

As to the defendant’s argument regarding a speedy trial, the Court of Appeals found that to be without merit “because the speedy trial provisions do not apply to parole or probation proceedings,” id., and the defendant had “failed to allege any specific prejudice which resulted from any delay in holding his hearing,” id. at 287.

The defendant contends that the Court of Appeals erred in finding that the defendant was properly served with a warrant on the violation of probation and that he was afforded a prompt hearing on the alleged violation of probation.

The defendant correctly points out that there is no evidence in the record to support a finding that the defendant had actual notice of the warrant prior to April 27, 1991, and that there is no evidence that the State made a diligent effort to serve a warrant on the defendant. Service of a warrant by regular mail will not support an inference that the accused had notice of a command to appear in court. See State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992). Furthermore, a “presumption of receipt of mail by the addressee does not arise unless it is shown that the letter was properly addressed, stamped, and mailed.” (Emphasis omitted.) Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 18, 480 N.W.2d 192, 196 (1992). In this case, there is no evidence that the envelope the warrant was mailed in was properly addressed, stamped, and mailed.

The defendant argues that since § 29-2267 requires the State to afford a probationer a prompt hearing upon the filing of a motion or information to revoke probation, the State’s lack of diligence in serving the warrant forfeits the State’s right to revoke probation after the probationary term has ended.

Nebraska law authorizes the filing of motions or informations to revoke probation during the term of probation and within a reasonable time thereafter. State v. Ladehoff, 229 [33]*33Neb. 111, 425 N.W.2d 352 (1988). Section 29-2267 and due process of law require that the probationer must have notice concerning the grounds of the alleged probation violation. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975).

In this case, the defendant related a lapse in sobriety in April 1990 to his probation officer and continued reporting regularly to his probation officer through his last scheduled appointment on September 19, 1990, 14 days before his probation was to terminate. The motion to revoke the defendant’s probation was not filed until the day before the end of the defendant’s probationary term, and the defendant was not personally served with the warrant on the alleged violation of probation until 6 months and 26 days after the filing of the motion to revoke probation. There is nothing in the record to indicate that the State made any effort, other than mailing the warrant to the defendant’s home address, to serve the defendant with the warrant.

Other jurisdictions which permit revocation proceedings after the term of probation has ended still require the prosecuting authority to demonstrate diligent effort in serving the warrant for. violation of probation whenever there is a significant lapse of time between the end of the probationary term and the due process hearing afforded on violation of probation. See, State v. Martens, 338 So. 2d 95 (La. 1976); State v. Berry, 287 Md. 491, 413 A.2d 557 (1980); People v. Cooper, 54 Misc. 2d 42, 280 N.Y.S.2d 920 (1967); Commonwealth v. Smith, 266 Pa. Super. 234, 403 A.2d 1326 (1979); Langston v. State, 800 S.W.2d 553 (Tex. Crim. App. 1990).

In Langston v. State, supra, the Texas Court of Criminal Appeals held that authorities had not exercised necessary diligence in arresting the defendant 8 months after a motion to revoke his probation had been filed and Vh

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Related

State v. Simons
315 Neb. 415 (Nebraska Supreme Court, 2023)
State v. Hernandez
730 N.W.2d 96 (Nebraska Supreme Court, 2007)
State v. Sklenar
690 N.W.2d 631 (Nebraska Supreme Court, 2005)
State v. Windels
503 N.W.2d 834 (Nebraska Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
503 N.W.2d 834, 244 Neb. 30, 1993 Neb. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-windels-neb-1993.