George v. State, CR

• Decision Date: 25 February 1985
• Docket Number: No. CR,CR
• Citation: 285 Ark. 84,685 S.W.2d 141
• Parties: Lowell Wayne GEORGE, Appellant, v. STATE of Arkansas, Appellee. 84-182.
• Court: Arkansas Supreme Court

Page 141

685 S.W.2d 141

285 Ark. 84

Lowell Wayne GEORGE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 84-182.

Supreme Court of Arkansas.

Feb. 25, 1985.

Larry D. Vaught, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Marci L. Talbot, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

This appeal is from a decision denying a writ of habeas corpus. It involves interpretation of statutes pertaining to the writ, thus our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29 1. c.

In his habeas corpus petition to the circuit court, George alleged he was being held pursuant to an illegal sentence. In an "appendix" to his petition these facts were stated. While on probation after conviction for burglary in Texas, George received permission to visit his brother in Desha County, Arkansas. While in Arkansas he was convicted of second degree murder. He was given a fifteen-year sentence in 1981. While free on an appeal bond he was advised by the sheriff to go to the Desha County courthouse for a hearing on a violation of his Texas probation requirements. The Desha County circuit judge said he was releasing George and turning him over to the sheriff of Anderson County, Texas. He was then sentenced in Texas to five years confinement for his probation violation. He was subsequently paroled in Texas. He returned to Desha County to visit his brother and was arrested and committed to the Arkansas Department of Corrections based on the commitment order issued upon his Arkansas conviction which had since been affirmed.

The circuit judge denied the petition because it failed "to state a ground for relief under the Arkansas habeas corpus law." The order denying the petition was entered before the state responded, and no hearing was held.

In his appeal to this court, George raises questions whether the Desha County circuit court had lost its jurisdiction to commit him because of his having been released to Texas authorities.

1. Denial of Hearing

From the order he entered, it appears the circuit judge denied the petition because he found nothing in it alleging a basis for habeas corpus. The appellant contends he should nonetheless have been given a hearing. The appellant has cited no authority for this position, and we do not find his unsupported argument convincing. While our statutory habeas corpus scheme contemplates a hearing in the event a writ is issued, we find nothing requiring a hearing be given any petitioner regardless of the content of the petition. See, Ark.Stat.Ann. §§ 34-1701, et seq., (Repl.1962).

2. Illegal Sentence

The central question is whether the petition stated any facts showing that the sentence and the commitment became illegal, assuming the circuit court of Desha County had "released" the petitioner to Texas authorities. In terms of Ark.Stat.Ann. § 34-1703 (Repl.1962), the question is whether there is a showing of probable cause that the petitioner is being detained unlawfully. One is held without lawful authority when it is shown the commitment is invalid on its face or the court lacked jurisdiction. Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980); Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961); Rowland v. Rogers, 199 Ark. 1041, 137 S.W.2d 246 (1940). The same fundamental question would be reached if we applied the second sub-part of Ark.Stat.Ann. § 34-1733 (Repl.1962) which says a prisoner can be discharged "[w]here, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterward, the party has become entitled to his discharge."

For his contention that the Desha County circuit court lost its jurisdiction and thus committed him illegally, the appellant cites Shields v. Beto, 370 F.2d 1003 (5th Cir.1967). There the petitioner was released on a furlough from a Texas prison, having served one year of a cumulative forty-year sentence. Instead of taking the furlough, the petitioner waived extradition and was sent to Louisiana where he served a sentence and was ultimately paroled and then released from parole. Some twenty years later the petitioner was convicted on a bad check charge in Texas. He was sentenced to two years imprisonment to which were added the thirty-nine years left unserved on his previous Texas sentence. The federal Court of Appeals held,

... that the extraditing...