Northcott v. Hand

• Decision Date: 14 May 1960
• Docket Number: No. 41808,41808
• Citation: 352 P.2d 450,186 Kan. 662
• Parties: Charles W. NORTHCOTT, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Respondent.
• Court: Kansas Supreme Court

Page 450

352 P.2d 450

186 Kan. 662

Charles W. NORTHCOTT, Petitioner, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Respondent.

No. 41808.

Supreme Court of Kansas.

May 14, 1960.

Syllabus by the Court

1. In an original habeas corpus proceeding wherein the petitioner was immediately placed on probation by the trial court after a valid conviction and sentence, a subsequent void order revoking the order of probation and committing the petitioner to the penitentiary does not deprive the trial court of jurisdiction to conduct valid proceedings pursuant to G.S.1957 Supp., 62-2244, for alleged violations of the order of probation and commit the petitioner to the penitentiary.

2. Under the facts related in the foregoing syllabus and as more fully set forth in the opinion, the petitioner has not been subjected to double jeopardy.

3. Under the facts and circumstances related in the opinion, the petitioner, alleged to be in violation of his order of probation, was brought before the court upon an arrest by warrant without unnecessary delay and given a hearing on the violation charged in compliance with G.S.1957 Supp., 62-2244.

Charles W. Northcott, petitioner, was on the brief, pro se.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and John Anderson, Jr., Atty. Gen., was with him on the brief for respondent.

SCHROEDER, Justice.

This is an original proceeding in habeas corpus in which the petitioner seeks his release from confinement in the State Penitentiary.

On October 25, 1958, the petitioner pleaded guilty in two separate cases in the district court of Osage County, Kansas. He was sentenced to the penitentiary for not more than five years for the offense of fraudulently disposing of mortgaged property and not more than two years for the offense of breaking jail, such sentences to run consecutively. On the same date execution of the sentences was suspended and the petitioner placed on parole for a term of two years. Thereafter, on January 10, 1959, the district court of Osage County entered an order revoking the petitioner's parole in each case and he was committed to the Kansas State Penitentiary.

On the 29th day of April, 1959, the district court of Leavenworth County, Kansas, granted the petitioner a writ of habeas corpus and discharged him from the penitentiary on the ground the Osage County district court had failed to afford the petitioner a hearing and an opportunity to show cause why such paroles should not be revoked as required by G.S.1957 Supp., 62-2244. In that proceeding the respective orders revoking the petitioner's paroles were declared void.

Upon his release from the penitentiary the petitioner was returned to the district court of Osage County on two warrants charging him with violation of his parole. Two days after his release from the penitentiary on May 1, 1959, the petitioner appeared before the Osage County district court with his attorney. At his request the matter was continued to May 15, 1959. On the latter date and on May 18, 1959, consolidated hearings in the two cases were had, at the conclusion of which the Osage County district court found the petitioner had violated his paroles. Whereupon the petitioner was again committed to the Kansas State Penitentiary where he is presently confined.

The grounds upon which the petitioner seeks his release are that (1) the district court of Osage County lost jurisdiction of the petitioner when it committed him to the Kansas State Penitentiary under the order of January 10, 1959; (2) the petitioner has been subjected to double jeopardy by the commitment order of May 18, 1959; and (3) the commitment order of May 18, 1959, is void because he was not brought before the court 'without unnecessary delay' as required by G.S.1957 Supp. 62-2244.

Did the district court of Osage County lose jurisdiction of the petitioner when he was committed to the Kansas State Penitentiary under the order of January 10, 1959?

The petitioner makes no attack on the validity of his convictions, sentences or upon the orders of probation. He was therefore a convicted and sentenced felon, on probation, but subject to having his parole revoked at any time prior to October 25, 1960. The question is whether the order of January 10, 1959, has any effect upon such status.

Prior to the enactment of the Postconviction Procedures Act, G.S.1957 Supp., 62-2226 et seq., (now G.S.1959 Supp.), the trial court's action in revoking the petitioner's parole without notice would have been proper under G.S.1949, 62-2204. Under the new act, however, in particular under G.S.1957 Supp., 62-2244, it was the duty of the trial court to have the petitioner brought before it for a hearing on the alleged violation. Relying upon this section of the statute the petitioner has procured an adjudication that the order of January 10, 1959, was void.

While this court has not previously considered the precise point here involved, it has on numerous occasions determined the effect of other void orders. Closely analogous in Devault v. Sampson, 114 Kan. 913, 221 P. 284. There the petitioner was arrested, convicted and sentenced before a justice of the peace on a Sunday. In an original habeas corpus proceeding the petitioner did not question the validity of the complaint, nor the warrant, nor his arrest thereunder on Sunday, but contended that receiving his plea and pronouncing judgment against him on Sunday were void. The court agreed with the petitioner's contentions, but denied the writ, saying:

'The record discloses no request on the part of the petitioner to be admitted to bail, and, since he was brought before the justice of the peace on a warrant, regularly issued, and the proceedings before such justice were void, the petitioner is in exactly the position of one who has failed or refused to enter into a recognizance for his appearance. He was properly committed to jail, not under a valid sentence, but for failure to enter into a recognizance for his appearance. Under the circumstances he is entitled to a trial, and is entitled to give bond for his appearance at any reasonable time which may be fixed by the justice of the peace for his trial.' 114 Kan. at page 916, 221 P. at page 285.

In Brandt v. Hudspeth, 162 Kan. 601, 178 P.2d 224, the court considered a void order in another situation. There the petitioner had pleaded guilty to a felony and had been sentenced to the penitentiary. This court in an original habeas corpus proceeding found that the sentencing court had failed to comply with the statutory provisions relating to the appointment of counsel, and the plea and sentence were therefore void. But the court went on to say 'Since the court was without jurisdiction to accept it the petitioner's plea of guilty is set aside. However, as a consequence, he is not entitled to his unrestrained liberty (Davis v. Hudspeth, supra). It is ordered that he be released from confinement in the state penitentiary under his illegal sentence and judgment and placed by the respondent in the custody of the sheriff of Crawford county, Kansas, who is directed to return him to the jail of that county to await proper proceedings in the criminal action yet pending against him in the district court of such county.' 162 Kan. at page...