Decker v. State

• Decision Date: 11 May 1973
• Docket Number: Cr. N
• Citation: 209 N.W.2d 879
• Parties: Darrell George DECKER, Petitioner, v. STATE of North Dakota and Robert M. Landon, Warden of the State Penitentiary, Bismarck, North Dakota, Respondents. o. 442.
• Court: North Dakota Supreme Court

Page 879

209 N.W.2d 879

Darrell George DECKER, Petitioner, v.STATE of North Dakota and Robert M. Landon, Warden of the State Penitentiary, Bismarck, North Dakota, Respondents.

Cr. No. 442.

Supreme Court of North Dakota.

May 11, 1973.

Rehearing Denied July 13, 1973.

Robert A. Keogh, Mackoff, Kellogg, Kirby & Kloster, Dickinson, for petitioner.

Tom M. Beyer, Stark County Asst. State's Atty., Dickinson, for respondents.

ERICKSTAD, Judge.

A writ of habeas corpus having been issued by Chief Justice Strutz commanding Robert M. Landon, the Warden of the State Penitentiary, to bring the petitionerDarrell George Decker before this court for a hearing to be held at 10 a.m. on the 19th day of March 1973, and such writ having been complied with and such hearing having been held, it is now our duty to ascertain whether Mr. Decker is being unlawfully held at the State Farm.

Decker having pleaded guilty to the crime of burglary in cases No. 1273andNo. 1274 in the district court of Stark County, the court on the 25th of May 1970 deferred the imposition of sentence in each case until the 4th day of January 1973, upon certain conditions.

The suspension of the imposition of sentence was appropriate under Section 12--53--13, N.D.C.C.

'12--53--13.Imposition of sentence suspended--When authorized.--When a defendant has been found guilty of a crime, whether or not for the first time, the court having jurisdiction thereof, including a county justice, upon application or its own motion may, in its discretion, suspend the imposing of the sentence and may direct that such suspension continue for a definite period of time, upon such terms and conditions as it may determine.Such period shall not exceed five years, except that in cases where the defendant has been found guilty of abandonment or nonsupport of his wife or children, the period may be continued for as long as responsibility for support continues.'N.D.C.C.

With the suspension of the imposition of sentence, Decker automatically came under the control and management of the parole board, pursuant to Section 12--53--14, N.D.C.C.

The pertinent part of that section reads:

'12--53--14.Defendant placed under control of parole board--Sponsor of defendant.--In the event the court shall suspend the imposition of sentence of a defendant, the court shall place the defendant on probation during the period of suspension.During the period of probation the defendant shall be under the control and management of the parole board, subject to the same rules and regulations as apply to persons placed on probation under suspended sentence as provided in this chapter. * * *'N.D.C.C.

On the 18th of January 1973 a petition was filed by one of the State parole officers with the district court of Stark County, requesting revocation of Decker's probation.

At the hearing on the petition, Decker admitted that he had violated the terms of his probation in both cases, in that he had violated State law in two instances within the period of probation, and in failing to make restitution of $500 to the parties wronged by his burglaries, within the period of probation.

By order dated the 2nd of February 1973, the district court revoked the probation in case No. 1273, and by judgment entered on that date sentenced him to confinement at the State Farm for a period of six months.By another order of the same date, the court extended probation in case No. 1274 to the 4th of January 1974, to give him additional time to make restitution.

Decker contends that the trial court did not have jurisdiction in either case to revoke probation after the expiration of the period of probation.He asserts that the State had ample opportunity not only to file the petition but also to bring the matter on for hearing within the period of probation, inasmuch as he had entered pleas of guilty in courts of this State to violations of State law well within the period of probation.

The State asserts that it did not file the petition or bring the matter on for hearing within the period of probation for the reason that it did not want to harass the petitioner and for the further reason that had the State done so, the petitioner's response would have been that he had the entire period of probation within which to make restitution and thus was not in violation of the probationary conditions in respect thereto.

The basic issue before us is nto whether the State had the opportunity to file the petition and bring it on for a hearing within the period of probation, but whether the court lost jurisdiction to act on the petition when it was filed after the period of probation set by the court but within the five-year period of probation authorized by law.

In support of his contention that the court lost jurisdiction, Decker cites a number of decisions, all of which hold that unless the petition for revocation is filed prior to the expiration of the period of probation, the court loses jurisdiction.

The decision most clearly resembling the situation in our case is alleged to be Avance v. Mills, 495 P.2d 828(Okl.Cr.1972).In that casethe petitioner received a five-year suspended sentence for robbery.Within that period of time, the State filed an application to revoke the suspended sentence because of the petitioner's conviction on a plea of guilty to a felony within that time.The petitioner moved for a continuance, which resulted in the hearing on the petition to revoke being held after the expiration of the five-year period.

The Oklahoma Supreme Court, after reviewing decisions of Michigan, California, and Arkansas, concluded that the trial court acquired jurisdiction when the petition was filed within the term of the suspended sentence and that it did not lose jurisdiction in postponing the hearing to a date following the expiration of the five-year term.

Although the Oklahoma statute in effect in Avance did not specifically require that the petition be filed within the term of the suspended sentence to vest the court with jurisdiction, the supreme court in reviewing the decisions of the states previously mentioned, inferred that unless such a petition was filed within the term the court lacked jurisdiction to act.Previous Oklahoma decisions so holding were based upon the earlier language of Section 992, which required the probationer 'to report to the judge of the court wherein convicted, at each succeeding term During the pendency of said judgment'(Emphasis added).SeeEx Parte Eaton, 29 Ok.Cr. 275, 233 P. 781(1925).

In People v. Hodges, 231 Mich 656, 204 N.W. 801(1925), referred to in Avance, the Michigan Supreme Court did not specifically hold that the court's jurisdiction to revoke probation was lost unless the petition to revoke was filed within the period of probation.The inference that jurisdiction may have been lost had the petition not been filed within the period of probation is derived from the following:

'If no action had been taken during the period of probation, a more serious question would be presented.But here the petition to revoke the probation was filed within the period of probation, and we think it must be held that the filing of this petition within the period of probation gave the court jurisdiction which was not lost by a reasonable delay incident to a hearing upon it.'People v. Hodges, Supra, 204 N.W. 801 at 802(Emphasis added).

The Michigan court in Hodges, in intimating that a more serious question would be presented if the petition had not been filed within the term, was apparently thinking of the language of Section 2032, C.L.1915.The pertinent part thereof reads:

'(2032)Sec. 4.At any time during the period of probation the court may, upon report by a probation officer or other satisfactory proof of the violation by the probationer of any of the conditions of his probation, revoke and terminate the same, * * *'MichiganC.L.1915.

Had the Michigan court been referred to Section 2033 of the same code, which seems to permit the trial court upon the termination of the probation period to extend the probation period as the circumstances may require, it may not have inferred that a more serious question would have been presented had the petition to revoke not been filed within the period of probation.

'(2033)Sec. 5.Upon the termination of the probation period, the probation officer shall report the fact to the court and also the conduct of the probationer during the period of probation, and The court may thereupon discharge the probationer from further supervision and enter a judgment of suspended sentence, or Extend the probation period, as the circumstances require: Provided, That the maximum period of probation herein limited shall not be exceeded.'MichiganC.L.1915(Emphasis altered).

In In re Griffin, the California decision referred to in Avance, the Supreme Court of California quoted a part of its statute and indicated its views as follows:

'Penal Code section 1203.3 provides that the court shall have authority to revoke or modify probation 'at this time during the term of probation.'The cases have consistently taken the view announced in People v. O'Donnell(1918)37 Cal.App. 192, 196--197, 174 P. 102, 104, that 'the statute itself furnishes the measure of the power which may thus be exercised' and 'the court loses jurisdiction or power to make an order revoking or modifying the order suspending the imposition of sentence or the execution thereof and admitting the defendant to probation after the probationary period has expired."In re Griffin, 67 Cal.2d 343, 62 Cal.Rptr. 1, 3, 431 P.2d 625, 627(1967).

In O'Donnell, the early decision referred to in Griffin, the court suspended the imposition of sentence for a period of three years.The law permitted the trial court to suspend the imposition of sentence for a period not to exceed five years.One of the conditions of probation was that the defendant Perry not leave or absent himself from the State of...