Ex parte Parker
| Decision Date | 01 October 1935 |
| Parties | IN RE GLENN PARKER |
| Court | Vermont Supreme Court |
May Term, 1935.
Habeas Corpus, Questions Reviewable, Examination of Record---Probation, Not Penal, Not Service of Sentence---Time for Serving Warrant, Effect of Negligence in Serving---P. L 8879, Time for Instituting Proceedings for Breach of Probation---P. L. 8882, 8873, Effect on Time for Disposition of Complaint---Effect of Violation of Conditions of Probation---P. L. 8879, Necessity of Commitment on Original Sentence or Recommitment to Probation---Effect of Probation on Sentence---Status of Probationer---Purpose of Commitment on Sentence after Breach of Probation---Effect on Sentence of Expiration of Time without Imprisonment---Status of Breach of Probation Complaint after Expiration of Probation Period---P. L. 8865, Limitations on Powers of State Probation Officer, Powers after Filing of Complaint for Breach---P. L. 8880, Meaning of "Recommit"---Status of Probationer after Filing of Complaint for Breach.
2. A writ of habeas corpus cannot be given the effect of a writ for the correction of errors and irregularities; the proceedings under review, however irregular they may have been, will withstand the writ if the court whose action is assailed has jurisdiction of the subject matter and the person, and renders such a judgment or makes such an order as it is authorized to render or make.
3. The writ of habeas corpus challenges only the jurisdiction of the court imposing judgment, but the inquiry is not confined to the jurisdiction over the subject matter and the person involved, but extends to the jurisdiction to render the particular judgment in question.
4. In habeas corpus proceedings, examination of the record of the proceedings in the court below will be confined to ascertainment of facts material to jurisdictional questions raised.
5. Commitment into custody of State probation officer of one convicted of a crime, whose sentence is suspended, is not penal; the purpose of such commitment is reformatory rather than penal.
6. The time that a paroled prisoner is at large on his parole, or the time that a convicted person is at large on probation, is not to be treated as time served on his sentence.
7. Where sentence is suspended and respondent is placed on probation for the maximum period of the sentence and such period has expired without respondent's having been imprisoned, he has served no portion of his original sentence.
8. Where warrant charging breach of probation was issued, and sheriff after receiving it made several unsuccessful attempts to locate the person named therein, before arresting him about three months after issue of the warrant, though it is shown that such person was during some of that time at his father's home within the State, it cannot be said under the circumstances that the warrant was not served within a reasonable time.
9. If an officer is negligent or dilatory in serving a warrant for breach of probation, the respondent named therein cannot in habeas corpus proceedings, after it has been adjudged that he violated conditions of his probation take advantage of such negligence or dilatoriness to avoid punishment which his wrongdoing will be assumed to have justly required.
10. Proceedings under P. L. 8879 to charge a probationer with having violated the conditions of his probation must be instituted by the State probation officer during the term of probation.
11. The provision of P. L. 8882 that the warrant issued by the court on the complaint of the State probation officer shall be authority for the arrest and detention of the probationer until the case shall have been inquired into and disposed of excludes the idea that the court must inquire into and dispose of the case within any certain specified time.
12. The exercise of the powers given to the court wherein a probationer was convicted, by P. L. 8879, 8880, and 8882, relating to apprehension of such probationer and hearing and disposition of the charges, in a proceeding where such probationer is charged with violating the conditions of his probation, is not limited to the term of his probation by the provisions of P. L. 8873 that the court placing a person on probation may, at any time during the term of probation, enlarge, alter, or amend the conditions or extend the terms thereof or discharge such person from the custody of the State probation officer.
13. The rule that where a convict fails to perform the conditions of his pardon or parole, the pardon or parole becomes void and he is liable to be remitted to his original sentence, applies with equal force to the violation by a probationer of the conditions of his probation.
14. The word "may" in P. L. 8879, providing that if the court is satisfied upon inquiry that the probationer has violated any of the conditions of his probation, it "may" order him committed on his original sentence, is to be construed as meaning "shall" in cases where the court does not determine that the probationer shall be recommitted to the State probation officer, as provided in P. L. 8880.
15. When a convicted person is placed on probation his sentence is suspended, not vacated; the judgment itself is not impaired or limited, the time for its execution is merely deferred.
16. A probationer is not freed from the legal consequences of his guilt, he is merely enjoying a conditional favor, which may be withdrawn.
17. If a probationer performs the conditions of his probation during the term thereof, he will be relieved at its termination from serving his original sentence; but when he violates such conditions, his probation becomes void and he is in the same state in which he was when his sentence was suspended and he was placed on probation; when the court orders him committed on his original sentence he is punished for the crime of which he was convicted, and not for violating the conditions of his probation.
18. Where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority; the expiration of the time without imprisonment is in no sense an execution of the sentence.
19. Where during the term of probation the State probation officer makes his complaint to the court, and the court issues its warrant for the apprehension of a probationer for breach of probation, the court has jurisdiction to conduct proceedings and order the probationer committed on his original sentence as provided in P. L. 8879, whether such proceedings are had during the term of probation or after it has expired.
20. While section 8865 gives the State probation officer the general supervision of persons placed on probation and of the administration of the statutes relating to probation, he has only such powers as are given him by the statute.
21. There is no statute which authorizes the State probation officer, when a convicted person has been placed on probation for a definite time, to adopt the practice of closing the case and discharging the probationer at the expiration of such term unless he has been convicted of a new offense before his term of probation has expired, or which authorizes him to discharge a probationer against whom a proceeding for violating the conditions of his probation is pending.
22. The word "recommit" as used in P. L. 8880 providing that after hearing on charges of breach of probation the court may "recommit" the probationer to the custody of the State probation officer, means "to give back into keeping"; hence it is to be inferred that the probation officer did not at the time of hearing have the custody and supervision of the probationer.
23. It will not be assumed that the Legislature used unnecessary language in framing a statute.
24. The custody and supervision of the State probation officer of a probationer ceases when he makes his complaint to the court wherein the probationer was convicted that such probationer has violated the conditions of his probation and the court issues a warrant on that complaint; thereafter, in legal effect, the probationer is in the custody of the court, the State probation officer does not have the power to discharge the probationer from probation, and anything he or the welfare department may do or attempt to do in discharging the probationer is without legal authority and is null and void.
PETITION FOR WRIT OF HABEAS CORPUS brought to one of the Justices of the Supreme Court and by him adjourned into Supreme Court, Caledonia County, May Term, 1935. Petitioner was convicted of possessing intoxicating liquor, sentence to house of correction was suspended and petitioner placed on probation. On complaint of State probation officer that he had violated conditions of probation, petitioner was arrested and after hearing court found he had violated such conditions and ordered him committed on original sentence. The opinion states the case. Petition dismissed.
It is adjudged that the petitioner is not illegally deprived of his liberty, and his petition is dismissed. Let execution of sentence be done.
Searles & Graves for the petitioner.
Sterry R. Waterman, State's attorney, for the State.
Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This is a petition for a writ of habeas corpus brought to one of the Justices of the Supreme Court and adjourned by him into the Supreme Court, May Term, 1935.
The petitioner, Glenn Parker, alleges that he is illegally detained and restrained of his liberty by ...
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