Ryan v. Wyrick
| Decision Date | 30 December 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 518 S.W.2d 89 |
| Parties | Ex parte Donald RYAN, Petitioner, v. Donald W. WYRICK, Respondent. 27352. |
| Court | Missouri Court of Appeals |
Richard R. Nacy, Jr., Asst. Public Defender, 19th Judicial Circuit, Jefferson City, for petitioner.
John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.
In this original proceeding in habeas corpus the petitioner seeks discharge from imprisonment on a petition which asserts denial of due process of law in the revocation of his probation.
Our writ went down commanding the Warden of the Missouri State Penitentiary to make return, disclosing whether he had the petitioner in his custody, the true cause of the imprisonment, and to exhibit the authority by which the petitioner was held. The respondent Warden duly made return which exhibited, among other documents, the judgment of conviction and sentence, the suspension of the five-year sentence imposed in favor of an order of probation for a five-year term, and also the order of revocation entered by the trial court.
The petitioner made no other denial or traverse to the return of the Warden. In this posture, a habeas corpus petition normally would not be heard.
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, 1989(3) (banc 1923).
The petitioner does not traverse the prima facie showing by the Warden in his return that he holds the petitioner lawfully under a judgment of conviction and order of revocation of probation, thus under the authorities, there would be cause for peremptory quashal of the writ. It appears, however, that both the petitioner and respondent have misconceived the procedure of the remedy and have adopted the petition as the principal pleading: The respondent Warden by the allegations of his return that the petition for habeas corpus should be dismissed for a failure of pleading, and the petitioner by his failure to join issue by traverse or denial. The parties have, moreover, framed their briefs and rested submission on the petition. In these circumstances, the respondent has waived failure of petitioner to make reply, and we determine those issues to which the parties have consented. Label v. Sullivan, 350 Mo. 286, 165 S.W.2d 639, 640(1) (banc 1942).
The petitioner, on July 23, 1973, entered a plea of guilty to assault with intent to kill with a dangerous and deadly weapon. The court imposed a sentence of imprisonment for five years, stayed execution and ordered the petitioner on probation for a term of five years. The order of probation, subscribed by the petitioner, imposed a number of conditions, including Condition number 1:
I shall obey all laws and ordinances of the United States, State, County or Municipality. All arrests for any reason must be reported without delay to my probation and parole officer.
Condition number 5:
I shall not associate with any person who has been convicted of a felony or misdemeanor (other than minor traffic violations). I accept my responsibility to know with whom I am associating and that the only exception the Court will recognize is such association as may be incidental to my place of residency or employment.
Condition number 8:
I shall report regularly, as directed, to my probation and parole officer, and I agree to follow and abide by any directives given me by my probation and parole officer.
The petitioner was given to the supervision of Dwayne Sachs of the Missouri Board of Probation and Parole. On January 28, 1974, events prompted Sachs to report the petitioner as in violation of conditions one, five and eight, and to institute a revocation proceeding.
Accordingly, a preliminary hearing was conducted at the courthouse on February 15, 1974, before the Senior District Supervisor of the Board of Probation and Parole. The hearing officer, upon evidence, found probable cause to believe that petitioner had violated conditions of probation five and eight and submitted the findings and report to the court which had imposed sentence and term of probation. The court thereupon conducted formal revocation proceedings on March 15, 1974, where petitioner was represented by attorney, witnesses presented and cross-examined, and evidence fully heard. At the conclusion of the hearing, the court revoked the probation and ordered execution of sentence.
The petitioner complains that these proceedings denied him due process of law in three particulars: 1) that the preliminary hearing of revocation was without notice to him of the date, place and purpose of the hearing or statement of allegations of violation; 2) that the formal hearing of revocation was without presentment to him of statement of violations of probation alleged against him, and 3) that the order of revocation of probation contains no formal statement of the evidence relied on by the court.
The first of these points is not within the issues presented by the petition for habeas corpus which, by consent, has been adopted by the parties as the formal pleading of these proceedings, and is not before us. The...
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