Dietz v. State

• Decision Date: 20 March 1984
• Parties: George Stephen DIETZ v. STATE. 8 Div 866.
• Court: Alabama Court of Criminal Appeals

Page 120

474 So.2d 120

George Stephen DIETZ v. STATE.

8 Div 866.

Court of Criminal Appeals of Alabama.

March 20, 1984.

Rehearing Denied April 24, 1984.

W. Clint Brown, Jr., Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

George Stephen Dietz, the appellant, was indicted and convicted for escape in the first degree in violation of Alabama Code Section 13A-10-31 (1975). He was sentenced as an habitual offender to life imprisonment. Five issues are raised on appeal.

I

Dietz contends that because his original arrest was not lawful he was not in "lawful custody" and therefore the State failed to present a prima facie case of escape and his motion for a judgment of acquittal was due to be granted.

In 1978, Dietz was convicted on two charges of burglary. He was given a ten-year sentence and ordered to serve the first twelve months in the custody of the Department of Mental Health and the balance on probation. This "sentence splitting" is authorized by Alabama Code Section 15-18-8 (1975). After serving the twelve months, Dietz was placed on probation.

On June 24th, 1980, Dietz was on probation when he was arrested by officers of the Hartselle Police Department for driving under the influence and for driving without a license. He was placed in the Hartselle City Jail.

The police department informed Dietz's probation officer, Warren McDonald, that Dietz had been arrested and charged with two misdemeanors. By telephone, McDonald placed a verbal "hold" on Dietz. On June 25, 1981, Dietz was transferred to the Morgan County Jail pursuant to arrangements made by McDonald. That same day, McDonald informed Dietz that he was under arrest for a violation of his probation: "I explained to him that we were holding him as a probation violator because he had violated the conditions of his probation." McDonald testified that he also told Dietz "why he was in jail."

When Dietz was transferred to the county jail, an "arrest and booking slip" was completed on him charging the offense of probation violation. Although the booking slip indicates that Dietz was booked with a warrant issued by McDonald, it is undisputed that this was incorrect and that there was no warrant of arrest.

On July 9th, two weeks after Dietz's incarceration in the county jail, McDonald prepared a written report (Supervisor's Report on Delinquent Probationer) explaining that Dietz had been arrested and charged with two misdemeanors and transferred to the county jail where he was being held as a suspected probation violator. McDonald filed this report with the circuit judge's secretary for the judge to review.

Dietz escaped from jail on February 4, 1982, and was captured in September, approximately seven months later. In November, he was given a copy of the Supervisor's Report of Delinquency. His probation was revoked in December of 1982.

"It is an essential element of the crime of escape that the custody from which the prisoner escaped was lawful." 30A C.J.S. Escape, Section 5(c)(2) (1965). By statute, the crime of escape involves the escape or attempt to escape "from custody". Alabama Code Section 13A-10-31 (1975). "Custody" is defined as a "restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court." Section 13A-10-30(b)(1).

Dietz contends that his arrest was unlawful because neither McDonald nor the officers who physically transferred him to the county jail had a written statement by McDonald (the probation officer) stating that Dietz had violated the terms of his probation.

Alabama Code Section 15-22-54(d) provides:

"(A)ny probation officer, police officer or other officer with power of arrest, upon the request of the probation officer, may arrest a probationer without a warrant. In case of an arrest without a warrant, the arresting officer shall have a written statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation, and said statement shall be sufficient warrant for the detention of said probationer in the county jail or other appropriate place of detention until such probationer shall be brought before the court. Such probation officer shall forthwith report such arrest and detention to the court and submit in writing a report showing in what manner the probationer has violated probation. Thereupon, the court, after a hearing, may revoke the probation or suspension of execution of sentence and shall proceed to deal with the case as if there had been no probation or suspension of execution of sentence."

This section specifically authorizes the warrantless arrest of probationers. The statute permits a warrantless arrest only if the person making the arrest has been authorized to do so by the probation officer. "An arrest without the proper authorization is usually invalid." N. Cohen & J. Gobert, The Law of Probation And Parole, Section 11.08 at 542 (1983), citing State v. Call, 8 Ohio App.2d 277, 220 N.E.2d 130 (1965) (deputy sheriff arrested parolee for parole violation without having parole officer's arrest order). But see State v. Deener, 64 Ohio St.2d 335, 414 N.E.2d 1055 (1980), cert. denied, 450 U.S. 1044, 101 S.Ct. 1766, 67 L.Ed.2d 611 (1981) (police officer's arrest, without written arrest order, is valid as long as it satisfies fourth amendment).

However, Section 15-22-54(d) does not, in our opinion, require the arresting officer, when arresting a probationer without a warrant, to have a written statement by the probation officer when the probation officer is the arresting officer. The purpose of the "written statement" by the probation officer is to ensure that there is sufficient certainty of a violation to make the arrest appropriate. Where the probation officer is the one actually making the arrest this certainty will be ensured and the written report unnecessary.

However, even if we consider Dietz's confinement "illegal" because McDonald did not have the "written statement" of Section 15-22-54(d), Dietz is not entitled to benefit from this irregularity. Even if Dietz's confinement was not technically lawful in all respects, we adopt the more realistic view in consideration of the dangers involved in escape, and follow that line of sound authority holding that, "where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed, or imprisoned as to justify or require his release on appeal or habeas corpus." Annot. 70 A.L.R.2d 1430, Section 4 (1960). "We think it is equally clear that even if a person, confined under color of law, is illegally confined because of violations of statutory procedures required with respect to his continued confinement, he is similarly not entitled to resort to self-help but must apply for his release through regular legal channels." Vucci v. State, 18 Md.App. 157, 305 A.2d 483, 484 (1973).

Dietz was already in lawful custody pursuant to a lawful arrest for traffic violations when he was transferred into the custody of the county at the direction of his probation officer. The fact that the sheriff did not have the probation officer's written statement is a matter of form rather than one of substance. See N. Cohen & J. Gobert, supra, Section 11.08 at 543 n. 119. The sheriff had probable cause for taking custody of (arresting) Dietz because the probation officer had communicated the fact that Dietz was a probation violator in making the arrangements for Dietz's transfer from the city to the county jail. Dietz's confinement in the county jail was under "color of law." We find the following persuasive:

"We believe that defendant's confinement by the Department of Corrections was 'lawful custody' because he was being held under color of law and his custody had not been legally challenged. See State v. Johns, 339 So.2d 801 (La.1976). Although he would have been able to show a defect in his custody through collateral attack, he had not applied for release from commitment through legal channels on that basis and his custody was facially legal.

"The words 'lawful custody' are described in the official revision comment to the escape statute, R.S. 14:110, in the following way:

" 'As long as the arrest and commitment are "legal" any attempt to escape is a crime, despite the guilt or innocence of the culprit. But if the warrant or arrest or commitment is void, the prisoner is not liable for escaping. However, an informality or irregularity in the process of commitment is not justification to escape.' (citations omitted)

"Thus, an escape may be justifiable where the confinement is without color of authority in, for example, situations where a person has been confined either without any authority at all or where the judgment was void on its face. However, where a prisoner is properly in custody under an order not void on its face and is serving a sentence under color of law, he cannot, because his confinement is subject to collateral attack, take matters into his own hands by way of escape but must apply for relief through regular legal channels. See City of New Orleans v. Lyons, 342 So.2d 196 (La.1977).

"We agree with the California Supreme Court on this subject in which it was said:

" 'To allow prisoners to use force to escape and then to permit the defense that they were unlawfully confined, would create chaos in a prison. In a democracy the right of self-help is seldom permitted. Resort to the courts is the normal and traditional method of correcting an unlawful confinement.' In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 178, 408 P.2d 948, 954 (1965).

"See also Henderson v. State of Kansas, 198 Kan. 655, 426 P.2d 92 (1967)."

State v. Perry, 364 So.2d 900, 901-02 (La.1978).

See also Aderhold...