Franklin v. State

• Decision Date: 26 May 1964
• Docket Number: No. 9268,9268
• Parties: Edward Reid FRANKLIN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 552

392 P.2d 552

87 Idaho 291

Edward Reid FRANKLIN, Petitioner-Appellant, v. The STATE of Idaho, Defendant-Respondent.

No. 9268.

Supreme Court of Idaho.

May 26, 1964.

Jones & Jones, Boise, for appellant.

Allan G. Shepard, Atty. Gen., R. La Var Marsh, Asst. Atty. Gen., Boise, for respondent.

SMITH, Justice.

This appeal raises the issues whether a district court in withholding sentence on a felony charge, pursuant to I.C. § 19-2601, commuted the sentence to a period of jail servitude ordered as a condition of probation; and whether the court had jurisdiction, under I.C. § 19-2601, to incarcerate the accused in the county jail as a special condition of the probation order.

Appellant having been accused of committing a felony by an information filed in the Ninth Judicial District Court, was arraigned before the Hon. Faber F. Tway, Judge of the court, January 10, 1961, and, represented by counsel, he pleaded guilty to the charge. His counsel requested that sentence be withheld and a pre-sentence investigation be had, which requests the court granted. February 7, 1961, at the time of pronouncement of sentence, appellant through his counsel again requested that judgment and sentence be withheld and probation granted. The court then ordered (per minute entry):

'that judgment be withheld for a period of two (2) years and that the defendant [appellant] be placed on probation to the Idaho State Board of Correction after serving sixty (60) days in the Bonneville County Jail.'

The district judge on the same date entered an 'Order Withholding Judgment and Order of Probation'; the material parts thereof read:

'AND WHEREAS, the said District Court, having ascertained the desirability of granting the petition of probation, does hereby order and decree that the said EDW ARD R. FRANKLIN be placed on probation, and sentence is hereby withheld for a period of two years under the following conditions, to-wit:

'1. That this probation is granted to and accepted by the probationer, subject to all its terms and conditions and with the understanding that the court may at any time, in case of the violation of the terms of the probation, cause the probationer to be returned to the court for the imposition of sentence as prescribed by the law or any other punishment as the court may see fit to hand down.

'2. That the probationer shall be under the legal custody and control of the Director of Probation and Parole of the State of Idaho and the District Court and subject to the rules of probation as prescribed by the Board of Correction and the District Court.

'3. Special conditions, to-wit:

'1. That the defendant [appellant] shall serve sixty days in the Bonneville County jail.

'2. That the defendant [appellant] shall make restitution to C. C. Anderson's Stores, Inc., in the amount of $929.90. * * *.'

A minute entry of March 31, 1961, shows that appellant appeared personally with his counsel at chambers, and that the court allowed appellant five days 'good time release from jail', and ordered his release on April 2, 1961, and

'further ordered that all other terms on the Order of Probation shall remain in full force and effect.

'Mr. Naylor [counsel for appellant at such time] was instructed to prepare the order, and contact the probation officer that the defendant [appellant] may fully understand the terms of his probation.'

An 'Agreement of Probation' was then entered into between appellant and the Board of Correction of the State of Idaho, acting through a district agent, appellant and the agent signing the agreement, and appellant was placed under supervision April 5, 1961.

November 15, 1961, the Board of Correction having advised the court that appellant had left the state of Idaho contrary to the terms of the Order of Probation, the court entered an order revoking appellant's probation, and issued a bench warrant for his apprehension and arrest.

March 15, 1962, the district agent of the Board of Correction filed his report alleging certain violations by appellant of the terms of his probation.

March 29, 1962, appellant was returned to the court on account of the alleged probation violations, bail was fixed, and April 3, 1962, was set as the time for hearing the alleged violations. The court advised appellant of his right to counsel; 'defendant [appellant] answered that he did not wish to secure counsel, but requested that he be permitted to make one telephone call,' which request the court granted.

April 3, 1962, at the time of the hearing, appellant again 'waived right to counsel and stated he desired to represent himself.' Appellant 'testified in his own behalf and acknowledged he was guilty of all of the probation violations filed against him.' Testimony was also taken on behalf of the State.

The hearing having been concluded, the court inquired whether appellant, or any other person, had any legal cause to show why judgment should not be pronounced, to which appellant replied that he had none; whereupon the court adjudged appellant guilty of a felony and sentenced him to a term of not to exceed five years in the Idaho State Penitentiary, followed by entry of judgment and commitment.

Appellant subsequently filed in the Third Judicial District Court a petition for a writ of habeas corpus; the writ was issued August 31, 1962, and a hearing was had, appellant being represented by counsel. Thereafter, on September 28, 1962, Hon. Hamer H. Budge, a judge of that court, entered an order discharging the writ and remanding appellant to custody.

Appellant, on October 25, 1962, appealed from that order. Thereafter, on October 31, 1962, pursuant to directive of this Court that, pending determination of the appeal, appellant be admitted to bail upon posting bond in a sum fixed, and he having done so, the district court entered an order releasing him from custody, pending such determination.

Appellant by assignment of error questions the validity of the probation agreement, asserting that he 'did not sign the probation agreement, nor the amended order on the probation agreement, nor the amended order of probation.' At the time the court withheld sentence on February 7, 1961, as requested by his counsel, the record indicates that appellant was familiar with the requirements of his probation imposed by that court. Such assignment is without merit. The conditions of probation were imposed by the order and not by the agreement. Ex parte Medley, 73 Idaho 474, 253 P.2d 794 (1953).

Appellant by assignment of error contends that he did not intelligently and understandingly waive his right to counsel at the hearing and proceedings had April 3, 1962, before the Ninth Judicial District Court upon revocation of probation.

Hon. Hamer H. Budge, the district judge before whom the proceeding at bar was had, correctly disposed of such contention in language which we adopt, as follows:

'Counsel * * * raises the further claim that the hearing revoking probation was contrary to law in that the petitioner was not represented by counsel, that he was of such a confused mental state that he did not know the nature of the proceedings, that no inquiry was made into whether or not the defendant violated his probation, and that no sworn affidavit was received so stating.

'The case of Ex parte Medley, 73 Idaho 474, 253 Pac. (2d) 794, disposes of the latter two.

"Petitioner's contention that he is entitled to a formal hearing in accordance with well recognized and established rules of procedure because he has a vested, substantial right in the probation, is not sustained by the prevailing weight of authority and without merit. The authority to revoke the probation does not even depend upon his violation of any of the terms or conditions of the order, the court may, upon proof, 'for any other cause satisfactory to the court', issue a bench warrant for the rearrest of the defendant, Sec. 19-2602, I.C., and, when brought before the court where judgment has been withheld, pronounce such judgment as it could have originally pronounced, Sec. 19-2603, I.C.; furthermore, such powers may be exercised at chambers. Sec. 19-2605, I.C.'

"To violate the terms and conditions of probation does not necessarily constitute a crime in itself nor is it so treated; it is a breach of the obligation of probation; the probationer cannot demand nor is he entitled to a formal hearing as in a judicial proceeding but such hearing may be informal and summary in jurisdictions where probation is not a right but a matter of grace or favor unless specifically otherwise provided by statute.' Ex parte Medley, supra. [Citations.] [73 Idaho at 482, 253 P.2d 794.]

'In a proceeding to revoke probation, a defendant has no absolute right to counsel and has been deprived of no constitutional right if brought before the court for that purpose without being furnished counsel. Gillespie v. Hunter, CCA, (Kan.), 159 Fed. (2d) 410; Bennett v. United States, CCA, (Mo.), 158 Fed. (2d) 412; cert. denied, 67 S.Ct. 1302, 331 U.S. 822, 91 L.Ed. 1838; United States v. Huggins, CCA, (Ind.), 184 Fed. (2d) 866; Anno., 29 A.L.R. (2d) 1097, 1110.'

See also Ex parte Levi, 39 Cal.2d 41, 244 P.2d 403 (1952).

Appellant, by assignment of error, further contends that the Ninth Judicial District Court, on February 7, 1961, commuted his sentence to a jail sentence of sixty days. While technically it may not be necessary to pass upon this issue, nevertheless we do so in view of our disposition of this appeal and the admonition of I.C. § 1-205.

Probation is not a matter of right; it may be granted the defendant through exercise of sound discretion by the trial court within the ambit of authority conferred by the legislature. The language of I.C. § 19-2601 has been so interpreted by this Court in Ex parte Medley, supra, and State v. O'Dell, 71 Idaho 64, 225 P.2d 1020 (1950). See also Spanton v. Clapp, 78 Idaho 234, 299 P.2d 1103 (1956); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Storseth v. State, 72...