Baine v. Beckstead

• Decision Date: 10 December 1959
• Docket Number: No. 9049,9049
• Parties: d 4 Frank BAINE, Plaintiff and Appellant, v. George BECKSTEAD, Sheriff of Salt Lake County, Defendant and Respondent.
• Court: Utah Supreme Court

Page 554

347 P.2d 554

10 Utah 2d 4

Frank BAINE, Plaintiff and Appellant, v. George BECKSTEAD, Sheriff of Salt Lake County, Defendant and Respondent.

No. 9049.

Supreme Court of Utah.

Dec. 10, 1959.

David H. Oliver, Salt Lake City, for appellant.

Grover A. Giles, County Atty., Richard C. Dibblee, Asst. County Atty., Salt Lake City, for respondent.

CROCKETT, Chief Justice.

The plaintiff contends that he is unlawfully restrained of his liberty because while he was on probation he was arbitrarily committed to the state prison without being afforded due process of law. He petitioned for and obtained from the district court a writ of habeas corpus. After a hearing the petition was dismissed and plaintiff remanded to custody. He appeals.

On March 4, 1958, the plaintiff having been convicted of the crime of issuing a check against insufficient funds was sentenced to the statutory indeterminate term of not more than five years in the state prison. After due investigation and consideration by the court he was placed on probation under supervision of the Adult Probation and Parole Department. He entered into the regular probation agreement imposing conditions as to good behavior and requiring him to make periodic reports to the department. To accomplish this a stay of execution of the sentence was ordered until June 27, 1958. This status continued through three additional stays of execution of sentence of about three months each, the final one being until March 27, 1959.

On March 11, 1959, J. E. McFadden, the probation officer, filed an affidavit alleging that on or about March 6, 1959, plaintiff had committed the crime of assault with a deadly weapon upon one Earlene Kennon. Thereupon the court issued an order to show cause why the plaintiff's probation should not be revoked. There is nothing before us to indicate what happened on its return date, March 25, except that the record shows that the order to show cause was dismissed. However, in the instant case on habeas corpus, the plaintiff testified that he appeared in open court March 27, his regular reporting day, and the day of the expiration of the stay of execution; and a hearing was had at which he was sworn and testified. Pursuant thereto the court refused to further stay execution and ordered him committed in accordance with the original sentence. The heart of plaintiff's argument is that inasmuch as the record shows that the order to show cause was dismissed, there is no justification for the order of commitment.

The question presented by the plaintiff's contention that he was not afforded due process of law in being committed to prison while on probation is not without difficulty. It has been dealt with by this court in a number of cases, which we will refer to below.

The governing statute confers upon the trial judge discretion as to whether to place one convicted of a crime on probation or to commit him to prison. Sec. 77-35-17 U.C.A.1953 provides:

'Upon a plea of guilty or conviction * * * if it appears compatible with the public interest, the court * * * may suspend the imposition or the execution of sentence and may place the defendant on probation for such period of time as the court shall determine.

'The court may subsequently increase or decrease the probation period, and may revoke or modify any condition of probation.'

It is to be kept in mind that deferments of commitment of persons convicted of crime are of two distinct types: one is probationary, the other is not. In the latter class the stay is a temporary one for purposes of adjustment to the exigent circumstances; that is, to give the court time for investigation and determination of what should be done; or it may be for the purpose of allowing the defendant time to put his affairs in order; or for other similar purposes which the court may think justify such a temporary delay. Under that type of stay the defendant does not attain probationary status. Under such a stay, when the purpose for granting it has been accomplished, there is no reason why the defendant cannot be committed forthwith without any procedural formality. ¹

The other type of deferment, and the one we are concerned with here, is of an entirely different character. It is used when the court has made its determination and exercised its discretion to place the defendant on probation. This may be done in different ways, but whatever method is used, the purpose is reform and rehabilitation: to give the defendant a chance, as the word 'probation' implies, to prove himself. For this purpose the defendant is required to agree to specified standards of conduct; and his continued liberty is dependent upon compliance with them. The same situation exists when he is on parole. In either case the freedom he enjoys is limited and is subject to revocation for violation of the prescribed conditions. But under such arrangements the obligations do not all run in one direction. The defendant promises to live up to stated requirements, and the public authority operating through the court extends to him the implied promise that if he makes good his probation will continue.

Notwithstanding the limitations on the freedom of such defendants, it is recognized that probation is a favored status. As well expressed by Justice Elias Hansen in the landmark case of State v. Zolantakis involving the question of termination of probation: 'The right to personal liberty is one of the most sacred and valuable rights of a citizen, and should not be regarded lightly.' ² He further observed that one on probation should not be deprived even of his limited status of liberty upon whim or caprice, but where the defendant is given a sentence suspended upon good behavior, that he has a right to rely thereon so long as such condition is complied with. It was there held that the defendant should be accorded the procedural protection of notice wherein he was charged with failure, be given an opportunity to answer, and the privilege of being heard and of cross-examining the witnesses against him.

The underlying principle of the Zolantakis case has continued to be regarded as sound where the facts are generally similar, i. e., where the probation is indefinite as to time. In some cases the procedural steps therein set out have not been strictly required under differing fact situations. In regard to those cases, it can be said generally that upon analysis it seems quite clear that the controlling considerations are: was the defendant in fact in a status of probation and, do the circumstances in fairness and justice warrant the granting of a hearing to the defendant.

In the case of Demmick v. Harris ³ it was held unnecessary to follow the procedural steps set forth in the Zolantakis case, because the defendant had not actually been placed on probation, but the stay of execution was only for the purpose of allowing time to make inquiry into the advisability of granting it. The court indicated that if there had been probation in the true sense, that Demmick would have been entitled to notice and a hearing.

In Williams v. Harris ⁴ the defendant had been convicted of burglary in Weber County and placed on probation under successive stays of imposition of sentence, from date certain to date certain. During his probation he was also convicted of burglary in Utah County; was then brought before the court in Weber County and in response to questions admitted the later conviction. Upon his contest as to proper procedure, the court stated that the procedural formalities need not be followed, pointing out that the stay was until a fixed date, and that no further stay need by granted. Notwithstanding this observation, it is obvious under the facts that further formality of procedure would have served no useful purpose. The same observation applies to the case of Christiansen v. Harris, ⁵ where the defendant was brought into court and admitted that he had pleaded guilty to drunkenness and also that he had issued several insufficient funds checks.

While the same general principles apply, a different situation is represented in the cases of McCoy v. Harris ⁶ and Ex parte Follett. ⁷ In those cases the subjects were on parole and probation respectively. Both had left the state and had entirely failed to report to the probation department and to the court as required by their probation agreement. Of these facts there could have been no dispute and the commitment was therefore justified without the formality of a hearing to determine further bases for revocation.

In some of the cases above discussed, it has been suggested that the procedural requirements set forth in the Zolantakis case apply only where the subject is on probation and the sentence is suspended for an indefinite period; and that if there is a stay of execution to a definite date, there is no obligation to grant a further stay and the defendant may be committed without a hearing. ⁸ The idea has also been expressed that there is a distinction between probation and parole: in the former the defendant being entitled to a hearing, but in the latter not, based upon the reasoning that the parole board is less apt to be arbitrary than is the court. ⁹ However, if the situation is analyzed realistically, there appears to be no real basis for such distinctions. There is no magic in the particular words used. Whether the defendant be placed on probation or parole, and by whatever method this is effected, the fundamental and controlling consideration is the status of the defendant in relation to the court and its authority. The rights and duties depend upon the nature of that relationship. This is determined by what is done and the purpose thereof, rather than upon the technical aspects of the ritual by which it is accomplished.

If the court or the board of pardons has determined that the defendant is a proper subject for rehabilitation and has given him liberty on the condition that he prove himself by following a...