Ockel v. Riley

• Decision Date: 13 September 1976
• Docket Number: No. 59249,59249
• Citation: 541 S.W.2d 535
• Parties: Edward A. OCKEL, V., Petitioner, v. Honorable James T. RILEY and Missouri State Board of Probation and Parole, Substitute Parties for Melvin Twiehaus, Respondents.
• Court: Missouri Supreme Court

Page 535

541 S.W.2d 535

Edward A. OCKEL, V., Petitioner, v. Honorable James T. RILEY and Missouri State Board of Probation and Parole, Substitute Parties for Melvin Twiehaus, Respondents.

No. 59249.

Supreme Court of Missouri, En Banc.

Sept. 13, 1976.

Rehearing Denied Oct. 12, 1976.

William R. Dorsey, Dorsey & Dorsey, Clayton, for petitioner.

Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondents.

BARDGETT, Judge.

Edward A. Ockel, V., filed an original petition for writ of habeas corpus in this court naming the sheriff of Warren county as respondent and seeking an order discharging him from probation on the grounds that the circuit judge of Cole county continued his probation for two years beyond April 17, 1975, the expiration date of the original period of probation, without pror notice and hearing. It is petitioner's contention that due process of law requires notice and hearing prior to an order continuing a person on probation, and that because he was not afforded notice and hearing prior to the expiration of his original term he was automatically discharged from probation by operation of law under section 549.111(1), RSMo 1969.

The writ issued and respondent filed his return asserting he, sheriff of Warren county, was holding petitioner in detention by virtue of a probation violation warrant issued September 22, 1975, pending a hearing to determine whether the probation granted April 18, 1972 (original term) should be revoked.

Petitioner filed an answer in which he admitted being detained but denied the detention was lawful asserting he had been discharged from probation by operation of law on April 17, 1975.

On November 13, 1975, petitioner moved to substitute the circuit judge and the state board of probation and parole of Cole county as respondents because petitioner had been released from the custody of the Warren county sheriff, but petitioner was still being maintained on probation by order of the circuit judge of Cole county under the supervision of the board of probation and parole. The motion was sustained and the parties ordered substituted.

Respondent circuit judge then filed a 'Motion for leave to amend Response (return) to writ of Habeas Corpus' together with his amended return. Leave to amend response was granted December 22, 1975, and petitioner was ordered to file answer to amended response. Petitioner filed 'Denial of Amended Return in Habeas Corpus' on December 30, 1975, and the cause has been briefed and argued.

'In a habeas corpus proceeding, the petition for the writ is merely a preliminary pleading which, upon the issuance of the writ, has fully served its purpose and drops out of the case when the return thereto is made. State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558, 561(1) (banc 1948). The return becomes the principal pleading which the petitioner can traverse only by reply. Thus, since the return is responsive to the writ, and not the petition, the issues in habeas corpus are, in the ordinary manner, framed not by the petition but by the return and the traverse by way of reply. Thompson v. Sanders, 334 Mo. 1100, 70 S.W.2d 1051, 1052(1) (banc 1934). If the petitioner fails to join issue on the return, the facts alleged therein are taken as conclusive and true, and the only question which remains is whether, under such facts, the restraint is authorized as a matter of law. Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, 1089(3) (banc 1923).' Ryan v. Wyrick, 518 S.W.2d 89, 91 (Mo.App.1974).

In this case the amended return alleges the plea of guilty before respondent on April 18, 1972; that respondent suspended imposition of sentence and placed petitioner on probation for three years; that petitioner returned to and continued to reside in Warren county, Missouri, and was under supervision of the Missouri state board of probation and parole; that petitioner exhibited irresponsibility toward the technical conditions of probation; that in July 1972 he left the state without permission; that petitioner was notified that this was a violation of probation; that petitioner missed several appointments with his parole officer; that on November 28, 1973, petitioner was arrested for speeding and driving while intoxicated and on September 6, 1974, was convicted of both offenses and fined $250 on the speeding charge. It alleged that on February 6, 1975, a probation violation warrant was issued for his arrest which alleged that he had violated that condition of probation which required obedience to the laws; that on February 9, 1975, petitioner was arrested and incarcerated by the sheriff of Warren county; that on February 10, 1975, petitioner was interviewed by his probation officer and discussed certain alleged violations of probation and admitted he had assaulted a named individual in a domestic dispute; that he made trips to the state of Nevada without permission and that he kept a gun at his bar. On February 10, 1975, the probation violation warrant was withdrawn.

The amended return further alleged that prior to February 24, 1975, petitioner's probation officer fully informed petitioner that she (probation officer) was applying to the circuit judge to extend petitioner's probation and her reasons therefor; that on February 24, 1975, respondent judge extended the probation for two years and on February 28, 1975, petitioner was notified by letter of the extension.

Petitioner in his pleading entitled, 'Denial of Amended Return in Habeas Corpus', admits he is in custody of the state board of probation and parole but denies that the 'custody' is legal on the ground that he was automatically discharged from probation on April 17, 1975.

The original term of probation ended April 17, 1975. Petitioner admits in his brief of receiving a letter from his probation officer on or about March 1, 1975, which stated that his probation had been extended from April 17, 1975, for a period of two years until April 17, 1977.

The petitioner did not deny the factual allegations of respondent's amended response and therefore those allegations will be taken as true. Ryan v. Wyrick, supra, 518 S.W.2d at 91.

The incident that triggered the instant petition for writ of habeas corpus was the act of the sheriff of Warren county in taking petitioner into custody on September 23, 1975, under a probation violation warrant. On or about October 6, 1975, an administrative hearing was held by a probation and parole officer to determine probable cause as to the charges of probation violation. The hearing officer filed his report with respondent on October 29, 1975, and on October 31, 1975, respondent ordered petitioner released from confinement. This order left petitioner on probation under the supervision of the state board of probation and parole.

The Missouri statutes with reference to judicial probation and parole are as follows:

Section 549.061, RSMo 1969, as amended 1975, provides:

'The circuit and criminal courts of this state, and the court of criminal correction of the city of St. Louis and boards of parole created to serve any court have power, as herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction; except as otherwise provided in section 195.200, RSMo, and sections 559.011 and 559.013.'

Section 549.071, RSMo 1969, provides:

'1. When any person of previous good character is convicted of any crime and commitment to the state department of corrections or other confinement or fine is assessed as the punishment therefor, the court before whom the conviction was had, if satisfied that the defendant, if permitted to go at large, would not again violate the law, may in its discretion, by order of record, suspend the imposition of sentence or may pronounce sentence and suspend the execution thereof and may also place the defendant on probation upon such conditions as the court sees fit to impose. The probation shall be for a specific term which shall be stipulated in the order of record. In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.

'2. The courts, subject to the restrictions herein provided, may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed, will, if permitted to go at large, not again violate the law, parole the defendant upon such conditions as the court sees fit to impose.'

Section 549.101(1), RSMo 1969, provides:

'The court granting probation or parole may at any time before order of discharge without notice to the defendant order his apprehension by the issuance of a warrant for his arrest and his appearance in court forthwith. Any probation or parole officer assigned to or serving the court or judge having jurisdiction may arrest such defendant without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. The written statement delivered with the defendant by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the defendant. After making an arrest the probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. The court may in its discretion with or without hearing, order the probation or parole revoked and direct that the sentence theretofore imposed be commenced and order execution thereof or in the event imposition of sentence was suspended the court may pronounce...