Ex parte Medley

• Decision Date: 17 February 1953
• Docket Number: No. 7964,7964
• Citation: 73 Idaho 474,253 P.2d 794
• Parties: Ex parte MEDLEY.
• Court: Idaho Supreme Court

Page 794

253 P.2d 794

73 Idaho 474

Ex parte MEDLEY.

No. 7964.

Supreme Court of Idaho.

Feb. 17, 1953.

Vernon K. Smith, Boise, for appellant.

Robert E. Smylie, Atty. Gen., Edward J. Aschenbrener, Leonard H. Bielenberg, Assts. Atty. Gen., and Blaine F. Evans, Pros. Atty., Boise, for respondent.

THOMAS, Justice.

This is an original proceedings in this court for a writ of habeas corpus, seeking release and discharge of petitioner from the penitentiary and the restoration of his freedom, and arises out of the following basic facts:

The petitioner was charged with the commission of the offense of grand larceny and was arraigned before the district court of the Third Judicial District of Idaho, in and for the County of Ada, on June 27, 1952, at which time he waived the time to plead and thereupon entered a plea of guilty. On the same date petitioner was examined as witness on his own behalf and for the information of the court by his counsel, who is not counsel for him in the present proceedings. His counsel also made a statement on behalf of petitioner.

At that time, upon application of the petitioner, the court, without making any adjudication of guilt, referred the case to the Board of Correction for pre-sentence investigation and report.

On July 18, 1952, petitioner appeared in court which, after considering the written report of the State Board of Correction, thereupon entered its order withholding judgment until the opening day of the September term of court for the year 1954. Such order released the custody of petitioner to the State Board of Correction to be by said Board released upon probation 'upon such terms and conditions as said Board and its duly authorized agents deem proper and prescribe, the Court hereby expressly reserving the right to extend or terminate the period of suspension or withholding of judgment herein'. The order further set forth that upon expiration of the period of suspension of judgment as fixed, or the earlier termination thereof, and upon written showing by or on behalf of petitioner that he had fully complied with the terms of his probation, the action should be dismissed.

On November 25, 1952, the prosecuting attorney filed a motion, supported by an affidavit of the parole officer, seeking the issuance of a bench warrant for the rearrest of petitioner for the reason that petitioner had allegedly violated the order withholding judgment by failing to refrain from further association with a certain woman.

Upon the same day, after considering the motion and supporting affidavit, the court issued an order terminating the order withholding judgment and commanded the issuance of a bench warrant for the arrest of petitioner and that he be brought before the court for pronouncement of judgment.

On the following day petitioner was arrested, contacted his present attorney who immediately filed a statutory affidavit of prejudice to disqualify the district judge, who had presided during all the previous proceedings herein set forth, from further acting or proceeding in the matter. During the same day and later that afternoon, petitioner came into court with counsel at which time the court openly reviewed and set forth all the proceedings originally taken, commencing with the arraignment of petitioner. The court thereupon again considered the motion previously made, granted the same and terminated the order withholding judgment. During such review the court stated that at the time the order withholding judgment was entered, the wife of petitioner was in the court with petitioner who was then expressly admonished to keep away from a particular woman (the one referred to in the affidavit of the parole officer), to return to his home and attempt a reconciliation with his wife; the court further observed that in the meantime petitioner had been arraigned on the charge of kidnapping the woman he was ordered to refrain from having association or contact with, and thereupon advised and informed petitioner that he was now at this particular time before the court upon the original charge of grand larceny. He then asked petitioner if he had any legal cause to show why judgment should not be pronounced against him.

Petitioner thereupon admitted to the court that he had contacted the woman and attempted to explain and justify such association. Following such brief explanation, the court again asked petitioner if he had any legal cause to show why judgment should not be pronounced. He made no response to this inquiry but his counsel thereupon stated that his single, sole and only purpose in appearing in behalf of petitioner was for the purpose of having the record show that a statutory affidavit of prejudice had been filed in the action and for the court to make some ruling on such affidavit. The relief sought by counsel was denied and the court pronounced judgment, adjudging the petitioner guilty of the crime of grand larceny, and sentenced him to a term of not more than 14 years in the state prison of the State of Idaho.

It is the contention of petitioner that he should be discharged and released from custody for the following reasons:

(a) That the filing of the statutory affidavit of prejudice immediately upon receiving notice of the pending proceedings and before any matter in relation thereto was submitted for decision and before the petitioner was formally and finally convicted and adjudged guilty, disqualified said judge to proceed further in the matter.

(b) That the court was without jurisdiction to place the petitioner on probation following a plea of guilty without first adjudicating such guilt, and such order withholding judgment for such reason is a nullity and petitioner is entitled to his freedom.

(c) That the order withholding judgment is a nullity because it did not contain specific terms and conditions of the probation.

(d) That the order terminating the probation is a nullity because the petitioner, having a vested right in his probation, the same cannot be terminated otherwise than by some recognized judicial procedure which includes notice of the alleged charges, and an opportunity to be heard and confronted with witnesses and to submit evidence in his own behalf.

(e) That the court relinquished and abandoned its jurisdiction to enter judgment for the reason that it did not at the time of the plea of guilty, or within a reasonable time thereafter, adjudicate the guilt of petitioner and impose sentence, but released petitioner without terms and conditions for an unreasonable length of time.

A judge may be disqualified in certain cases where a party litigant makes and files a statutory affidavit of prejudice before any contested matter in relation to such litigation has been submitted for decision to such judge sought to be disqualified; no such statutory affidavit, however, may be filed in any case after any contested matter in relation to such litigation has been submitted for decision to such judge sought to be disqualified. In this case, as disclosed by the facts heretofore related, the statutory affidavit of prejudice comes too late. Petitioner had entered a plea of guilty and placed himself at the mercy of the court and then sought and was granted clemency. A contested matter in relation to the litigation had been submitted to the judge whom petitioner sought to disqualify prior to the filing of the statutory affidavit of prejudice. Sec. 1-1801, I.C., as amended, S.L.1951, c. 52; State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.

The contention that the court was without jurisdiction to place petitioner on probation following a plea of guilty without first adjudicating such guilt is without merit. The statute, Sec. 19-2601, I.C., as amended, S.L.1949, c. 117, expressly provides that where a person enters the plea of guilty to certain crimes including the one involved herein, the court may, in its discretion, withhold judgment and put the defendant on probation. This procedure was followed by the court. The statute does not require that the court must first adjudicate the guilt of defendant. The obvious and commendable objective of the Act which seeks in a proper case to avoid the stigma of a judgment of conviction would be in major part defeated if the contention of petitioner is accepted. To withhold judgment after a plea of guilty protects the defendant at that time against the stigma of a conviction which may be forever avoided should the defendant conform to its terms and conditions. This creates, and rightfully so, a hope in the heart of the accused that he may ultimately be released under an order of probation without the stigma of a judgment of conviction. This is an incentive for complete rehabilitation and reform, one of the salutary objectives of the Act.

It is urged that the terms and conditions of the probation must be set forth in the order, otherwise such order is of no force or effect and is a nullity. Sec. 19-2601, I.C., as amended S.L.1949, c. 117, provides in pertinent part as follows:

'19-2601. Parole.--Whenever any person shall have been convicted, or enter a plea of guilty in any District Court of the State of Idaho, of or to any crime against the laws of the State, except those of treason or murder, the court may, in its discretion, * * * suspend the execution of the judgment, or withhold judgment on such terms and for such time as it may, * * * prescribe and may put the defendant on probation in charge of some proper person selected and designated by the court for that purpose, and make such orders relative thereto as the Court in its sound discretion deems necessary and expedient.'

The statute expressly directs the district judge when exercising his statutory power within his sound discretion, to prescribe such terms and make such orders in relation thereto as the court in its sound discretion deems necessary and expedient. Hence, it appears that it is the duty of the judge at the outset to inform the defendant as to the...