Gawron v. Roberts

• Decision Date: 13 July 1987
• Docket Number: No. 16604,16604
• Parties: Timothy J. GAWRON, Petitioner-Appellant, v. Lt. Mike ROBERTS, Jailor, Ada County Jail; Robert Lewis, Probation Officer; and Ronald Housley, Probation Officer, Respondents.
• Court: Idaho Court of Appeals

Page 983

743 P.2d 983

113 Idaho 330

Timothy J. GAWRON, Petitioner-Appellant, v. Lt. Mike ROBERTS, Jailor, Ada County Jail; Robert Lewis, Probation Officer; and Ronald Housley, Probation Officer, Respondents.

No. 16604.

Court of Appeals of Idaho.

July 13, 1987.

Timothy J. Gawron, pro se. Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondents.

WALTERS, Chief Judge.

Timothy Gawron was arrested and jailed by his probation officer for violating the terms of his probation agreement. Two days later, in a habeas corpus proceeding, a magistrate ordered Gawron released from custody. After Gawron's release, the state appealed to the district court. The district court reversed the magistrate's decision, concluding that Gawron "was not illegally in custody" when the magistrate ordered his release. Gawron appeals from the district court's decision. He presents two issues: (1) Does a magistrate have jurisdiction to pass judgment upon a petition for writ of habeas corpus challenging the interim detention of a prisoner held under a probation officer's warrant alleging probation violations? (2) If so, is detention unconstitutional where the petitioner has not been provided with an initial or prerevocation hearing within forty-eight hours of his arrest? We hold that under the circumstances of this case the petitioner was entitled to be released from custody. Therefore, we reverse the ruling of the district court and affirm the decision of the magistrate. However, because the petitioner is presently incarcerated in the state penitentiary pursuant to another commitment, no release in fact results from our decision.

Gawron was on probation under a five-year suspended sentence for receiving stolen property. After he had been on probation for about three years, a search of Gawron's residence and vehicle by his probation officer and police revealed items suspected to be narcotics paraphernalia, burglary tools and stolen property. The search was conducted at 11:00 a.m. on Monday, November 19, 1984. Gawron was present during the search and was arrested immediately thereafter by the probation officer for allegedly violating probation. Gawron was confined in the Ada County jail. Apparently the arresting officer's report to the court was prepared the following day, November 20, but was not signed until Wednesday, November 21. ¹

On November 21, Gawron petitioned for a writ of habeas corpus and sought release on bail. The writ was issued at 10:45 a.m. on that day. In response to the writ, Gawron was brought before a magistrate at approximately 3:00 p.m. that same afternoon. The state stipulated that the sentencing judge had not issued a bench warrant for Gawron's arest nor had an underlying criminal charge been filed. The state relied primarily on I.C. § 20-227 for its authority to hold Gawron. ²

In his petition, Gawron alleged that he previously had been arrested twice on probation officers' warrants, held in jail for up to ten days, and then released without violation reports ever being filed. Evidently to avoid reoccurrence of similar treatment, in his petition Gawron contended that he was entitled to be apprised of the charges against him and to a bail hearing or to release from custody. The deputy prosecuting attorney's return to the writ of The writ commanded the jailer and Gawron's probation officers:

                [113 Idaho 332] habeas corpus stated that Gawron had been arrested pursuant to I.C. § 20-227, was in custody, and was the subject of a probation officer's report which had been prepared for submission to the sentencing judge.  The return stated that Gawron was lawfully in custody and would be brought before the sentencing judge within fifteen days pursuant to I.C. § 20-229A. 3  The return did not controvert Gawron's allegations regarding prior detentions.  Unless controverted, the allegations of a petition for writ of habeas corpus must be treated as true in determining whether the writ shall issue.   Mahaffey v. State, 87 Idaho 228, 392 P.2d 279 (1964).  The writ was duly issued
                

To bring Timothy Gawron, currently incarcerated at the Ada County Jail, before this Court at the hour of 3:00 o'clock p.m., November 21, 1984, at the Barrister St. Courthouse and at said time show cause why Timothy Gawron should not be informed on the charges, if any, against him; and further, why he should not be released from incarceration and be given the opportunity at said time and place to be heard on the matter of bail.

At the resulting hearing, Gawron's counsel indicated the legality of the arrest was not being challenged. Instead, Gawron sought release on bail pursuant to I.C.R. 33(e). The magistrate's inquiry led him to conclude that the state was required to file a probation violation report or some other form of complaint within a reasonable period. He found that no order for detention had been issued by the sentencing judge, nor had a magistrate issued a warrant based upon any criminal charge forming the basis for the violation allegations. He also found two business days to be an unreasonably long period between the arrest and the "arraignment." Therefore, at 4:20 p.m., he ordered that Gawron be released from custody at 5:00 p.m. that day, unless by that time the state obtained a warrant for the detention of Gawron issued by a court of competent jurisdiction. Thirty-seven days later, on December 28, 1984, the state appealed to the district court.

The district court reversed the magistrate's determination. The district court held that the matters of bail and release must be brought before the sentencing judge, who retained jurisdiction over the defendant during his probationary period. And, in any case, notification to the sentencing judge of the arrest and alleged violation satisfied due process and statutory requirements.

Before examining the merits of Gawron's appeal, we must address a question not raised by the parties. The magistrate's order simply released Gawron from custody. It did not dismiss the probation violation charge. The parties have not apprised us whether Gawron's probation was subsequently revoked, or whether that proceeding terminated upon his release. In any case, Gawron is presently incarcerated on other grounds and, therefore, is not subject to a new detention pending probation revocation. Thus, on its face, the case before us would appear to be moot and subject to dismissal.

However, one of the exceptions to the mootness doctrine has been succinctly stated as follows:

If the alleged constitutional violation is likely to be repeated, and the duration of the violation to any one individual's rights is predictably less than the time ordinarily required to obtain a hearing on the issue, and the alleged violation is of strong public interest, then the mootness doctrine will not apply. [Citations omitted.]

Russell v. Fortney, 111 Idaho 179, 180, 722 P.2d 488, 489 (1986) (opinion by Huntley, J., dissenting from order denying petition for review of Court of Appeals' decision in Russell v. Fortney, 111 Idaho 181, 722 P.2d 490 (Ct.App.1986)).

We believe this case fits within the exception. Circumstances similar to this case are capable of repetition and yet could

[113 Idaho 333] otherwise evade review. See Luther v. Molina, 627 F.2d 71 (7th Cir.1980). A continuing risk exists that probationers will be detained in violation of their constitutional rights. In probation revocation proceedings, delays in providing an initial hearing or appearance before a court can be expected to be too short in duration to be fully litigated prior to a final hearing on the merits of the revocation. Thus, probationers may continue to seek recourse by way of writ of habeas corpus. Here, both parties seek a resolution of the issues presented by Gawron's appeal. The issues are worthy of our attention. We now turn to those issues.

I

We turn first to the question of the magistrate's jurisdiction to rule on Gawron's habeas corpus application. The district judge held that the magistrate erred by entertaining Gawron's petition, ⁴ and, in any case, Gawron's statutory and constitutional rights had not been violated. The respondents, Roberts (the jailer), Lewis (Gawron's probation officer) and Housley (Lewis' supervisor), argue in support of the district court's decision. ⁵

It appears that, pursuant to I.R.C.P. 82(c)(2)(E), the magistrate in this case was authorized by the district court to handle habeas corpus cases in general. See IDAHO STATE BAR DESK BOOK § C, p. C-26 (1987) (local rule 3 of the Fourth Judicial District). Habeas corpus is an extraordinary writ which is inappropriate where other adequate remedies are available. See In re Application of Downing, 103 Idaho 689, 652 P.2d 193 (1982). Although bail is available pending a probation revocation hearing, see I.C.R. 33(e), the respondents note that "after a judge has granted probation, he retains jurisdiction during the probationary period." State v. Oyler, 92 Idaho 43, 47, 436 P.2d 709, 713 (1968). See also I.C. § 19-2601 (authority of sentencing court to place defendant upon probation). The respondents interpret Oyler as conferring exclusive jurisdiction upon the sentencing court. Therefore, they argue, unless the sentencing judge is not available, only that judge has the power to release a probationer when a probation revocation proceeding is pending.

We do not read Oyler so restrictively. The Court in Oyler couched its reference to the retention of jurisdiction by the sentencing court in probation cases in terms of the trial court's continuing discretion to modify the conditions of probation. We find nothing in Oyler to suggest that the sentencing court's jurisdiction is exclusive. Our examination of the ambit of a writ of habeas corpus action suggests a contrary result.

The "Great Writ" of habeas corpus is a time-honored method of testing the authority of one who deprives another of his liberty. See Preiser v. Rodriguez, 411 U.S. 475, 93...