Reiter v. Camp, 27347
| Decision Date | 30 December 1974 |
| Docket Number | No. 27347,27347 |
| Parties | Stephen N. REITER, Petitioner, v. George M. CAMP, Director, Missouri Department of Corrections, and Calvin L. Beard, acting Superintendent, Algoa Intermediate Reformatory for young men, Respondents. |
| Court | Missouri Court of Appeals |
Ruppert & Schlueter, Michael C. Aufdenspring, Clayton, for petitioner.
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondents.
Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, SOMERVILLE, WASSERSTROM and TURNAGE, JJ.
This is a proceeding in habeas corpus wherein the petitioner asserts that he is being illegally and unlawfully confined in the Algoa Intermediate Reformatory for Young Men at Jefferson City, Missouri by reason of an order and judgment of the Circuit Court of St. Louis City, which revoked his probation.
On May 29, 1974, a writ of habeas corpus was issued from this court commanding the respondents to make return thereto on or before June 17, 1974. On that date, respondents made return and the matter was briefed by the parties and orally argued before the court.
Some preliminary matters require determination before this case is considered on its merits.
In a jurisdictional statement contained in respondents' brief, they recognize the general constitutional power of this court to issue and determine original remedial writs as granted in Article V, Section 4, of the Missouri Constitution, V.A.M.S., but also assert that under Section 532.030 RSMo 1969, V.A.M.S., and Ruld 91.59, V.A.M.R., the petitioner should be required to apply 'in the first instance' for relief by habeas corpus in the Circuit Court of Cole County. If there was any validity to this position in the past, it has been vitiated by the provisions of Rule 84.22, which provides:
'No original remedial writ, except habeas corpus, will be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court.' (Effective Jan. 1, 1972) (Emphasis added)
and by this court's decision in Ex parte McCarter v. Hinton, 434 S.W.2d 14, 16(1) (Mo.App.1968) which decision followed and applied the principles declared in Ex parte Hagan, 295 Mo. 435, 245 S.W. 336, 337(1) (Mo. banc 1922). These decisions hold that the constitutional authority to issue and determine habeas corpus proceedings cannot be diminished or curtailed by legislative enactment. Jurisdiction to determine this matter is lodged in this court.
Respondents in the first point in their brief assert that the petition herein does not state a cause of action. The thrust of this argument seems to be that, since petitioner does not contest the legality of his original conviction and sentence but only the legality of the revocation of his probation, habeas corpus will not lie. They further assert that he has an adequate remedy by declaratory judgment. These arguments are rejected. The petitioner is presently imprisoned in the Algoa Reformatory as a result of a revocation of his status as probationer, which he asserts was the result of an unconstitutional proceeding which denied him due process. Habeas corpus is the proper remedy to test the legality of his present incarceration, as will abundantly appear from the authorities hereinafter discussed. If petitioner is correct in his position, he is entitled to immediate release and restoration of his prior status as probationer. Declaratory judgment is a wholly inadequate remedy to accomplish that result.
The petitioner seeks his unconditional discharge and restoration of his status as probationer upon the ground that the Circuit Court abused its discretion in revoking his probation in two particulars. First, the court refused to grant petitioner a psychiatric examination; and second, he was not afforded due process in the revocation proceedings.
The resolution of these points requires that the history of this case, as revealed by the return to the writ and the documents attached thereto, the transcript of the revocation proceedings, and the briefs of the parties be considered.
On December 7, 1971, the petitioner entered a plea of guilty on two charges of illegal possession of narcotic drugs and was sentenced to 3 years on each of said charges, such sentences to run concurrently. On that same day, the court suspended the execution of the sentence and placed the petitioner on probation for a period of five (5) years. Section 549.071(1) RSMo 1969, V.A.M.S. One of the written conditions of that probation stated:
On November 21, 1973, the following order was made in the two criminal causes:
'The Probation and Parole Officer, having reported that the above named defendant, STEPHEN N. REITER, has failed to obey the laws of this State and has failed to report all arrests without delay to his Probation and Parole Officer IT IS HEREBY ORDERED by this Court that the probation heretofore granted be revoked and the defendant arrested and brought before this Court on Monday, December 3, 1973, at 2:00 P.M. to show cause, if any he has, why this revocation order should be set aside and probation reinstated. Defendant to be brought to Div. #18.
Capias Warrant ordered issued.'
This order was entered without any prior notice to petitioner and without any hearing. A copy of the order was sent to petitioner's present counsel, who had also represented him in the criminal proceedings.
On December 3, 1973, the petitioner and his counsel being present, the court asked that the Probation and Parole Officer, Lloyd R. Stafford, read into the record his Parole Violation Report dated November 16, 1973. This was apparently the report referred to in the court's order of November 21, 1973. So far as the record shows, this occasion was the first time that either the petitioner or his counsel had been formally advised of the facts which were claimed to have placed him in violation of his probation. Mr. Stafford also identified a police report involving a 'Suspicion of Burglary' arrest of the petitioner on November 11, 1973. Both the violation report and the police report were marked and admitted into evidence as exhibits by the court.
In addition to the 'Suspicion of Burglary' arrest, Stafford's violation report indicated that on October 2, 1973, the petitioner was arrested for speeding. The arresting officer found a green substance which appeared to be marijuana on the seat of the car and in a bag stuffed in the toe of a shoe under the front seat and partially smoked marijuana cigarettes in the ashtray. Petitioner was booked for illegal possession of marijuana and speeding. He did not report this arrest to Mr. Stafford until October 22, 1973, at which time he admitted that he had been smoking marijuana on the evening of the arrest. He did not report the arrest of November 11, 1973 on suspicion of burglary to Mr. Stafford at any time, but Stafford became aware of this incident by reading the County Arrest Sheet. So far as this record discloses, neither of the charges arising from these arrests have ever been pressed by the prosecuting authorities.
At the hearing of December 3, 1973, at the conclusion of Mr. Stafford's testimony, the following appears:
I want to put it on the record that we'll seek psychiatric (help) for Steve with the officials at the Department of Corrections.' (Emphasis and parenthesis supplied)
At the conclusion of this hearing, the following order was entered:
'Hearing to determine whether or not defendant's probation should be revoked was held. Witnesses called, sworn and testified. Upon evidence adduced Court finds that the defendant is in violation of the conditions of the probation previously granted and same is hereby revoked and defendant remanded to the custody of the Sheriff to be transported to the Department of Corrections at Jefferson City to commence serving the three-year sentences heretofore imposed on December 7, 1971.
SO ORDERED:'
The record in this proceeding must be taken as it is received and it...
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