Petition of Williams, 10826

• Decision Date: 02 March 1965
• Docket Number: No. 10826,10826
• Citation: 399 P.2d 732,145 Mont. 45
• Parties: Petition of Joseph WILLIAMS.
• Court: Montana Supreme Court

Page 732

399 P.2d 732

145 Mont. 45

Petition of Joseph WILLIAMS.

No. 10826.

Supreme Court of Montana.

Submitted Dec. 10, 1964.

Decided March 2, 1965.

Urban Roth (argued), Butte, for appellant.

Forrest H. Anderson, Atty. Gen., Louis Forsell, Sp. Asst. Atty. Gen. (argued), Hanrahan & Crowley, County Atty's Office, William F. Crowley (argued), Helena, for respondent.

Paul T. Keller, Helena, amicus curiae.

FRANK I. HASWELL, District Judge, sitting in place of JOHN C. HARRISON, Justice.

This is an original proceeding for a writ of habeas corpus. Joseph Williams, an inmate of the Montana State Prison, appearing pro se, filed a handwritten petition for a writ of habeas corpus with this court contending that his imprisonment is unlawful and illegal in that he has been placed twice in jeopardy for the same offense and that he has been denied due process of law by reason thereof.

Thereafter this court, by per curiam order, 399 P.2d 731, appointed counsel to represent petitioner for the purpose of investigating the factual situation involved herein, and briefing the law applicable thereto, ordered appointed counsel to file a statement of facts and brief of the law, ordered the attorney general and Lewis and Clark county attorney to file briefs and upon the same being filed, indicated that oral argument would be set.

Subsequently counsel for petitioner caused to be certified to this court and filed herein copies of various documents relating to proceedings against petitioner on a charge of grand larceny in the District Court of Lewis and Clark County ultimately resulting in a sentence of five years imprisonment in the State Prison under which petitioner is now imprisoned and of which he now complains. These documents are certified copies of the amended informantion, a written stipulation signed by petitioner, his attorney and the county attorney provided for psychiatric examination and observation of petitioner at the Montana State Hospital prior to entry of plea, a court order dated August 22, 1963, after plea of guilty, a court order modifying the order of August 22, 1963, a bench warrant and minutes of the court relating thereto, the county attorney's petition for revocation of probation and imposition of sentence, the court's order of October 11, 1963, revoking probation, refusing to further withhold imposition of sentence and imposing sentence together with the judgment and commitment of petitioner to the Montana State Prison.

Thereafter all counsel filed the documents required by said per curiam order of this court. In addition a brief amicus curiae was filed. The attorney general filed a petition for diminution of the record to which petitioner filed written objections. Thereafter oral argument herein was set and heard embracing all issues herein.

The undisputed facts appearing from the record herein disclosed that on July 30, 1963, the county attorney filed in the District Court of Lewis and Clark County, by leave of court, an amended Information charging petitioner and another with the crime of grand larceny, a felony. On the same date both defendants were duly arraigned up to the point of entry of plea, at that point both defendants, who were represented by the same attorney, filed with the court a written stipulation signed by each defendant personally, their attorney and the county attorney to the effect that each defendant be taken to the Montana State Hospital for psychiatric examination and observation prior to entry of plea. Both defendants were taken there and later returned to the district court.

On August 22, 1963, petitioner again appeared before the district court with his attorney, and entered a plea of guilty to the charge of grand larceny. At the time petitioner entered this plea, his attorney requested he court to delay imposition of sentence and place petitioner on the alcoholic rehabilitation program used by that Court and the Honorable Lester H. Loble, one of the District Judges thereof. After, Judge Loble explained to petitioner that he would be willing to comply with the request of counsel for petitioner or sentence petitioner immediately, petitioner himself indicated he wished to try the alcoholic rehabilitation program. Accordingly, on the same date, Judge Loble entered the following order set forth verbatim herein (except for title of court, cause and caption entiting it 'Order'):

'In this cause the court by order duly made and entered required the defendant be taken to Montana State Hospital at Warm Springs, Montana, for treatment for alcoholism and that a report on the defendant and an evaluation of his probable ability to overcome alcoholism be made, and said report having been received, and the same being on file herein, and the defendant having been returned to the County Jail of Lewis and Clark County, Montana, and now being brought before the court and having entered a plea of guilty to the charge,

'NOW, THEREFORE, IT IS ORDERED AND ADJUDGED:

'1. That the Court, pursuant to Section 94-7832, suspends the imposition of sentence and releases the defendant on probation as hereinafter set forth.

'2. That a condition of probation shall be and is that defendant shall not, during the period of probation, drink intoxicating liquors.

'3. That the defendant shall become a member of Alcoholics Anonymous and a regular attendant at its meetings and comply with its general program for the rehabilitation of alcoholics.

'4. That the defendant will be jail-based in the County Jail of Lewis and Clark County, Montana, and may have employment outside of the County Jail; that said Sheriff may permit the defendant to be gainfully employed and that the said Sheriff is absolved of any liability in permitting the defendant to be absent from the custody of said Sheriff without bail.

'5. That the earnings of the said defendant shall be collected by the Sheriff and from such earnings he shall pay to the County of Lewis and Clark costs of said prisoner's board, together with payment of the prisoner's personal expenses outside of the County Jail in a reasonable amount to be determined by the said Sheriff, and that any balance remaining after payment as aforesaid, shall be retained by the Sheriff until said defendant is discharged, at which time said balance shall be turned over to the defendant.

'6. That should the defendant violate his probation, any peace officer is by this order authorized to apprehend him, return him to the County Jail and bring him before the court for determination as to whether he had violated his probation and if it so be determined, for sentence to be imposed for the crime to which he has pleaded guilty.

'7. The period of reserving imposition of sentence and of probation shall be for one (1) year from this date.

'8. Upon the completion of a year of successful probation, the defendant may apply to this court for such other order herein as may be just and equitable.

'Done and dated in open court this 22 day of August, 1963.

'Lester H. Loble

'District Judge'

On September 16, 1963, Judge Loble modified the order of August 22 to the extent of permitting petitioner to accept employment at a ranch in Broadwater County and while so employed to remain at the ranch and not be jail-based. In all other respects the order of August 22 was re-affirmed. At that time petitioner had been jail-based in the Lewis and Clark County Jail for approximately 25 days under the order of August 22.

On September 27, 1963, a bench warrant was issued for petitioner's arrest for violation of the order of August 22 and thereafter on October 10, 1963, the county attorney petitioned the court to revoke the conditions of probation previously imposed by the order of August 22 and to impose sentence for petitioner's original crime of grand larceny. The following day a hearing on the county attorney's petition was held with petitioner present in person and with counsel, at the hearing petitioner himself admitted that he had been drinking intoxicating liquor, that he had 'hocked' a tire off another man's car for $3.00, and that he was not working or living at any ranch in Broadwater County but instead was more or less aimlessly travelling around and engaging in questionable activites. At the conclusion of the hearing on October 11, 1963, Judge Loble entered an order revoking the order of August 22, 1963, placing petitioner on probation and suspending imposition of sentence, refused to withhold imposition of sentence further and sentenced petitioner to five years imprisonment in the State Prison on the original charge of grand larceny. Judgment and commitment thereon was issued the same day.

At the outset the attorney general's petition for diminution of the record herein by inclusion in the record of the official court reporter's transcript of proceedings held in the district court of Lewis and Clark County on July 24, July 29, July 30, August 22 and October 11, all in 1963, is before this court for ruling. The record of the proceedings sought to be included herein concern proceedings had therein against petitioner on the charge of grand larceny ultimately leading to the sentence of October 11 of which he complains. The transcript supplements and completes the record herein filed by petitioner's counsel and is directly material and relevant to that record and to the issues involved herein. Such transcript in no way contradicts any facts or records relied upon by petitioner in his application for a writ of habeas corpus. Such transcript is as much a part of the record herein as are the various documents and minutes of the court filed by petitioner's counsel and completes the record of proceedings in the district court. Accordingly, the attorney general's petition for their inclusion as part of the record herein is granted.

Petitioner's claim that he is now illegally and unlawfully imprisoned in the Montana State Prison can be summarized under three basic contentions: (1) That the...