Mallory, In re, 84-930

• Decision Date: 24 April 1985
• Docket Number: No. 84-930,84-930
• Citation: 17 Ohio St.3d 34,17 OBR 28,476 N.E.2d 1045
• Parties: , 17 O.B.R. 28 In re Petition for Writ of Habeas Corpus for MALLORY.
• Court: Ohio Supreme Court

Page 34

17 Ohio St.3d 34

476 N.E.2d 1045, 17 O.B.R. 28

In re Petition for Writ of Habeas Corpus for MALLORY.

No. 84-930.

Supreme Court of Ohio.

April 24, 1985.

Hyman Friedman, County Public Defender, Gail Gianasi Natale and Gary W. Puzin, Cleveland, for appellee.

John T. Corrigan, Prosecuting Atty., and John B. Gibbons, Cleveland, for appellant.

PER CURIAM.

In an appeal as of right from a judgment of the court of appeals involving an extraordinary writ, this court will consider the case as if the action originally had been filed here. See State ex rel. Halloran v. Zapatony (1984), 15 Ohio St.3d 73, at fn. 2, 472 N.E.2d 357.

The facts in this case are undisputed. The appellee was held in the custody of the Sheriff of Cuyahoga County pursuant to the revocation order. That order resulted from the appellee's conviction on a second charge two years after probation was imposed. The parties differ however, as to whether the trial court was retroactively divested of jurisdiction to direct appellee's confinement and whether collateral attack through habeas corpus is the proper means to test the validity of his incarceration.

Appellee argues that although the court had jurisdiction at the time of the hearing, it lost jurisdiction when the 1982 conviction was reversed and the charges were dropped, thus rendering the revocation proceedings a nullity.

The state contends that "[w]hen a judgment revoking probation rests on a prior criminal conviction, such a judgment does not become null and void when the prior criminal conviction is reversed on appeal. Said judgment of probation revocation remains a valid judgment and cannot be attacked collaterally by a writ of habeas corpus." The state acknowledges that "[t]he judgment revoking petitioner's probation rested upon the continued validity of the under lying [sic ] conviction." It contends, however, that "[o]nce the under lying [sic ] conviction and subsequent dismissal was [sic ] removed, the judgment revoking probation still remained a valid judgment, although it was subject to direct attack as being a voidable judgment. * * * "

In In re Lockhart (1952), 157 Ohio St. 192, 105 N.E.2d 35 , paragraphs two and three of the syllabus, this court held:

"2. The extraordinary remedy of habeas corpus is for the purpose of determining the legality of the restraint or custody under which a person is held.

"3. If the judgment or order under which an accused is imprisoned is a nullity, habeas corpus is the recognized and approved remedy to secure his release."

In Stahl v. Shoemaker (1977), 50 Ohio St.2d 351, at 354, 364 N.E.2d 286 , we observed: " * * * Although the writ is available to parties who unlawfully are deprived of their liberty, it is unavailable to those deprived of their freedom pursuant to a lawful criminal sentence."

It, of course, is conceded that at the time appellee's probation was revoked, the court had jurisdiction. But when the court of appeals reversed the conviction and remanded the case, it placed appellee in the position of one not convicted. Appellee, then, was clothed with the presumption of innocence. The probation revocation was premised on a judgment which later became a nullity. Consequently, the order was rendered ineffective and void.

While this court has not before considered an issue such as this, the court of appeals, in In re Anderson (1978), 55 Ohio App.2d 199, 380 N.E.2d 368 , addressed a related question. The court said at 201, 380 N.E.2d 368:

"The trial judge could not have foreseen the reversal and, therefore, acted in good faith when he had the prisoner returned to Cuyahoga County for the violation hearing. * * * However, the legal effect of the reversal, the remand, and the discharge * * * was to render the conviction in the second case a nullity. * * * All action taken in connection with the probation violation grounded on the second conviction was outside the jurisdiction of the sentencing court. [Citation omitted.]"

The trial court had a duty to terminate the unauthorized incarceration resulting from the reversal of the 1982 conviction. Appellee did make an appropriate motion to vacate the sentence, but the motion was not ruled upon, apparently because the trial court felt it lacked jurisdiction to do so. Such jurisdiction, however, was not lacking. In Van DeRyt v. Van DeRyt (1966), 6 Ohio St.2d 31, at 36, 215 N.E.2d 698 , we explained: "Although a court does not have inherent power at common law to make substantive amendments to its judgments after term * * * [citations omitted], it...