Bryant, In re, 133-70
| Decision Date | 06 April 1971 |
| Docket Number | No. 133-70,133-70 |
| Citation | 129 Vt. 302,276 A.2d 628 |
| Parties | In re Daniel V. BRYANT. |
| Court | Vermont Supreme Court |
Keith E. King, Bennington, for plaintiff.
Frank G. Mahady, State's Atty., and Paul F. Hudson, Deputy State's Atty., for the State.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
The plaintiff seeks release from the State Prison in Windsor by means of a writ of habeas corpus, brought in the Windsor County Court. The Windsor County Court, having made findings of fact, dismissed the petition and the plaintiff has duly taken his appeal here. The plaintiff is now detained in the State Prison by virtue of an executive warrant, signed by the Governor of Vermont, directing the rendition of the plaintiff to the State of New York where he is sought as a fugitive from justice.
An understanding of the issues presented here requires us to narrate the factual background of the case as presented in those parts of the petition of the plaintiff which are admitted to be correct in the answer of the defendant.
On May 22, 1970, the plaintiff was arrested by warrant from the State's Attorney of Windsor County as a fugitive from justice from the State of New York. On the same date, all other charges then pending against the plaintiff in the State of Vermont were nolle prossed by the State of Vermont. On the same May 22nd, the plaintiff appeared before the Windsor District Court, refused to waive the 24-hour period for entering a plea, and also refused to waive extradition when so requested by an officer of the State of New York. He was not represented by counsel at this time, although the record shows that he was offered counsel by the court, and refused.
On May 24, 1970, the plaintiff appeared before the Windsor District Court and, acting pro se, entered a 'plea in Bar' and stood mute. The court set bail at $5,000.00 and took the plea under advisement. The plaintiff was unable to furnish bail.
On July 16, 1970, the plaintiff returned to court and further argued on his 'plea in bar'. The court denied his plea and set August 6, 1970 as a date of hearing after entering a plea of not guilty in behalf of the plaintiff. On July 21, 1970, Keith E. King, Esq., was assigned as counsel for the plaintiff.
On August 5, 1970, the charge of being a fugitive from justice, pending against the plaintiff, was nolle prossed, and he was served with the executive warrant. A hearing was held on that date in which the plaintiff objected to the summary nolle prosse of the fugitive from justice charge against him, and also argued a motion to quash the executive warrant. The lower court took the motion under advisement and gave the plaintiff until September 22, 1970 to file a writ of habeas corpus.
A hearing on the petition for habeas corpus, filed by the plaintiff and the motion of the State to dismiss the same, was held by the Windsor County Court on September 21, 1970. The findings of fact of the Windsor County Court were that the plaintiff, at the time of the hearing on the petition for habeas corpus, was confined in State Prison by virtue of the executive warrant dated July 31, 1970. The court also found that the plaintiff was identified as the person named in the warrant by a police officer from New York State, as well as that the plaintiff was under indictment in the State of New York for burglary in the third degree, as well as petty larceny. The court also found that the plaintiff did not introduce any evidence in support of his claim that he was presently imprisoned, detained and restrained of his liberty at the Vermont State Prison and 'That the imprisonment, detention and restraint of the petitioner as aforesaid is unlawful and without right and contrary to the legal and constitutional rights of the petitioner and in violation of the laws of the State of Vermont and of the United States * * *', as plaintiff had averred in his petition. Found also, was that the Warden of the Vermont State Prison, in whose custody the plaintiff alleged he was restrained and detained, had not been made a party to the proceedings. The petition for the writ of habeas corpus was denied. At the October Term of this Court, we granted the plaintiff's motion to stay the execution of the warrant of extradition and admitted the plaintiff to bail in the amount of $3,000.00.
The plaintiff first argues that his detainment as a fugitive from justice was illegal, in that he was detained for more than thirty days before the warrant of the Governor was served upon him. 13 V.S.A. Sec. 4955 provides, in part, that a person held as a fugitive from justice from another state shall be committed to jail by a warrant, reciting the accusation, for a time not to exceed thirty days. Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment, such person shall be admitted to bail. 13 V.S.A. Sec. 4956. If the accused is not arrested under warrant from the Governor by the expiration of the time specified in the warrant, bond or undertaking, the judge may discharge him or may recommit him for a further period not to exceed sixty days. 13 V.S.A. Sec. 4957.
In the instant case, the record is clear that the plaintiff has been confined since May 22, 1970, and that he was still confined at the time of the issuance of the Governor's warrant of extradition, dated July 31, 1970. The record is also clear that no order was made extending the time of confinement during that period of time for more than the statutory thirty days' detention.
We must, therefore, agree with the contention of the plaintiff that his detention upon the warrant charging him with being a fugitive from justice was unlawful after the expiration of thirty days from the time of his arrest on May 22, 1970. At the expiration of that period, the plaintiff, if he had brought a writ of habeas corpus, would have been entitled to have been released from his confinement. We would also agree that if the writ of habeas corpus now before this Court was for the release of the plaintiff from detention on the warrant charging him with being a fugitive from justice, that such relief would have to be afforded him by this Court.
But the record before us is that the warrant against the plaintiff on the fugitive from justice charge was nolle prossed, and that he was arrested...
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