Ropp, In re

• Citation: 541 A.2d 84,149 Vt. 154
• Decision Date: 24 December 1987
• Docket Number: No. 87-486,87-486
• Court: United States State Supreme Court of Vermont
• Parties: In re Gerald ROPP.

Page 84

541 A.2d 84

149 Vt. 154

In re Gerald ROPP.

No. 87-486.

Supreme Court of Vermont.

Dec. 24, 1987.

Steve Dunham, Public Defender, St. Albans, for petitioner-appellant.

Howard E. VanBenthuysen, Franklin County State's Atty., St. Albans, for respondent-appellee.

Before ALLEN, C.J., PECK, GIBSON and MAHADY, JJ., and KEYSER, J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Petitioner appeals from the denial of a petition for a writ of habeas corpus after an arrest under Vermont's extradition statute on charges of felony nonsupport in Wisconsin. We affirm.

On October 17, 1987, petitioner was stopped by a Vermont State Police officer because of a bald tire. A records check revealed that he was wanted in Wisconsin as a fugitive from justice on a warrant alleging that he was in arrears in court-ordered support for his two children. He was arrested without warrant, pursuant[149 Vt. 155] to 13 V.S.A. § 4954, and brought before the District Court, Franklin Circuit on October 19, 1987 upon a Complaint and Petition for Interstate Rendition of Fugitive.

The complaint filed by the state's attorney alleged that the petitioner was charged with the crime of felony nonsupport, that probable cause existed to show that he probably committed the crime, that a felony arrest warrant had issued for him based upon an affidavit of an investigator for a sheriff's office, and that the affidavit alleged that the defendant had failed to make court-ordered support payments with arrearages exceeding $25,000. An affidavit of a Vermont State Police officer attached to the complaint stated that he had probable cause to believe that petitioner was a fugitive from justice based on a records check which revealed that he was wanted on a criminal felony warrant for nonsupport in Wisconsin.

Following the examination required by 13 V.S.A. § 4955, ¹ the district judge found that the petitioner was the person charged with having committed the crime alleged, that he probably committed the crime and that petitioner had fled from justice. See Lovejoy v. State, 148 Vt. 239, 243-44 531 A.2d 921, 924 (1987). Petitioner was thereafter committed to the Commissioner of Corrections by mittimus to await a warrant of the Governor. He then filed the instant petition in Franklin Superior Court.

The superior court concluded that the findings were supported by the record and denied the petition. At the hearing on his petition for the writ, petitioner contended that there was no showing that he had probably committed the offense and that the State did not allege that he had been in the State of Wisconsin during the period that "forms the basis for the criminal case." Petitioner renews these claims on appeal.

At the superior court hearing the state's attorney represented that the information and affidavits supporting the allegations in the complaint had been furnished to him over the telephone by a detective at the Kenosha County, Wisconsin police department. This information was sufficient to establish that petitioner probably committed the crime. ² The documents and hearsay before the court supported the findings and justified continued detention under 13 V.S.A. § 4955. See Lovejoy, 148 Vt. at 244, 531 A.2d at 924.

The contention that the State did not allege that petitioner was in the State of Wisconsin during the period involved is quickly disposed of. ³ The affidavit accompanying the arrest warrant alleged that the petitioner, at the City of Kenosha in Kenosha County, Wisconsin, failed to provide child support. There is no evidence in the record before this Court contradicting the allegations that the petitioner committed the crime at Kenosha on the dates set forth and that he was a fugitive.

Petitioner next contends that his commitment was erroneous because he was committed after his hearing in the Franklin District Court by a mittimus instead of a warrant, as prescribed in 13 V.S.A. § 4955, and that the mittimus did not meet the requirements of a warrant, described in § 4953. Petitioner's reliance on § 4953 is misplaced. Section 4953 involves a court-issued arrest warrant to apprehend a person charged with a crime in another state. There is no indication that the requirements for an arrest warrant apply to the "warrant" in § 4955, which commits the accused to jail for not more than 30 days, pending arrival of the Governor's warrant for arrest under § 4947.

So long as all of the procedural safeguards have been observed, the petitioner may not complain that the commitment "warrant" required in the language of the Uniform Criminal Extradition Act was referred to as a "mittimus" here. The distinction is purely semantic. Black's Law Dictionary 904 (5th ed. 1979), defines "mittimus" as:

The name of a precept in writing, issuing from a court or magistrate, directed to the sheriff or other officer, commanding him to convey to the prison the person named therein, and to the jailer, commanding him to receive and safely keep such person until he shall be delivered by due course of law....

This is precisely the function performed by a "warrant" under § 4955. The district court's order of commitment was in proper form and provides no basis for review.

Affirmed.

1 13 V.S.A. § 4955. Commitment to await extradition; bail

If upon examination it appears that the person held is the person charged with having committed the crime...