State ex rel Ahern v. Young, 40105

• Decision Date: 25 February 1966
• Docket Number: No. 40105,40105
• Citation: 273 Minn. 240,141 N.W.2d 15
• Parties: STATE of Minnesota ex rel. Michael Patrick AHERN, Appellant, v. Jack G. YOUNG, Superintendent of Minnesota State Reformatory for Men, Respondent.
• Court: Minnesota Supreme Court

Page 15

141 N.W.2d 15

273 Minn. 240

STATE of Minnesota ex rel. Michael Patrick AHERN Appellant, v. Jack G. YOUNG, Superintendent of Minnesota State Reformatory for Men, Respondent.

No. 40105.

Supreme Court of Minnesota.

Feb. 25, 1966.

Syllabus by the Court.

1. It is the intent of the legislature as expressed in Minn.St. 609.14, subd. 3(2) (L.1963, c. 753, § 609.14, subd. 3(2)), that, upon revocation of a stay of sentence and probation, execution of the original sentence may be ordered with no credit given for time served on probation.

2. Though credit is given for time served on parole, one on probation is in a substantially different class, so that failure to grant credit to a probationer does not deny him equal protection of the laws.

3. Upon revocation of a stay of sentence and probation, an order to serve the sentence as originally imposed does not subject a probationer to involuntary servitude or cruel and unusual punishment.

John R. Peterson, Albert Lea, for appellant.

Robert W. Mattson, Atty. Gen., Linus J. Hammond, Asst. Atty. Gen., Gerard W. Snell, Sol. Gen., St. Paul, for respondent.

ROGOSHESKE, Justice.

Appeal from an order discharging a writ of habeas corpus and remanding petitioner to respondent for execution of a 3-year sentence imposed upon his conviction of forgery. The question for decision is whether petitioner is entitled to credit toward the expiration of his sentence for time spent on probation.

Following his plea of guilty to forgery, petitioner was sentenced on July 10, 1962, for a term not to exceed 3 years. On that date the court entered an order staying the execution of the sentence and placing petitioner on probation on the conditions that he serve 90 days in the Freeborn County jail with credit for time already served therein; that he make restitution of the forged check within 1 year; and that he be placed under the supervision of the commissioner of corrections subject to all rules and regulations of his supervising agent. He was released from the county jail on July 30, 1962, and continued on probation for almost 1 1/2 years, when, pursuant to Minn. St. 609.14 (L.1963, c. 753, § 609.14), the stay and probation were revoked after hearing and petitioner ordered committed to serve the sentence previously imposed. At the time of filing his application for the writ, he had been confined either in the county jail or State Reformatory and under probation for 81 days more than the maximum period of the 3-year sentence imposed.

Petitioner urges us to recognize probation as a form of punishment, however ambulatory or mild. He contends that the severe restraints placed upon a probationer ¹ are such that he is not a free man but is under the constant surveillance, control, and custody of the court, subject to compliance with any special conditions imposed and obedience to the rules and regulations of his supervising authority. He then argues that equating probation with punishment (or imprisonment) reveals that each has essentially identical attributes. Thus, unless credit is given for time spent on probation, petitioner will be punished far beyond the sentence imposed. He points out that conceivably probation could be revoked on the last day of his 3-year term. With no credit given, he could be subjected to 3 more years of punishment, or almost double the maximum period of the original sentence, and such treatment would, he claims, amount to involuntary servitude and violate his constitutional rights against cruel and unusual punishment. Petitioner contends that no statutory provision expressly denies or grants credit and argues that the court is therefore free to grant credit to prevent injustice. Finally, he argues that parole and probation are identical in character, imposing like restraints, and because Minn.St. 243.18 ² grants credit to parolees for time served on parole, denying credit for time served on probation is discriminatory against probationers in violation of the equal-protection and due-process clauses of the Federal and state constitutions.

We have carefully weighed petitioner's ingenious arguments, but in the face of what we believe to be clear and binding statutory direction to the contrary we cannot grant the relief requested.

1. Determination of what conduct constitutes a criminal offense and the punishment that ought to be imposed (including the terms and conditions of probation, confinement, and parole) is pecularly a legislative and not a judicial function. Contrary to petitioner's position, the pertinent statutory provisions make clear the legislative intent that no credit should be allowed for time served on probation. Section 609.14, subd. 3(2) (L.1963, c. 753, § 609.14, subd. 3(2)), expressly provides that upon revocation of the stay of sentence and probation the court is authorized either to continue the probation or 'order execution of the sentence previously imposed.' ³ This provision supplants Minn.St.1961, § 610.39, which provided, perhaps more clearly, that upon revocation of the order staying sentence, 'the sentence theretofore imposed shall be executed in all respects as though no proceedings (with respect to probation) * * * had been taken.'

Additional statutory references also reveal a legislative policy against credit for probation. Comments by Professor Maynard E. Pirsig, reporter for the advisory committee which assisted in drafting the Criminal Code of 1963, indicate that during legislative hearings a modification was made in § 609.14 to provide that, upon notice that a probationer has violated any of the conditions of probation, 'the court may without notice revoke the stay (of execution of sentence) and probation * * *.' ⁴ The language was inserted to cover the case where a probationer violates the terms of his probation but cannot be found before the period of probation expires. Thus, the court may revoke the stay and terminate the probationary status, and upon return of defendant and after hearing, may make either order authorized by subd. 3, notwithstanding the probationary period would have expired if not so suspended. This provision necessarily contradicts any intent by the legislature to allow credit since, if the period of probation continued to run and expired before the probationer was found and heard, it would necessarily bar any further action by the court. ⁵

Legislative intent to deny credit can also be gathered from those provisions of the new criminal code which provide revocation of the stay and probation can only become effective after notice and hearing. Previously no notice and hearing were required. This modification reveals a legislative policy requiring that probation be revoked only for a substantial violation. This policy in turn reflects an intent not to allow credit, for upon revocation, if commitment were limited to only the term of the sentence remaining, the violation need not be substantial or deserving of careful scrutiny.

Additionally, the Criminal Code of 1963 now provides that probation can be granted before as well as after imposition of sentence, ⁶ unmistakably authorizing imposition of the full sentence despite granting probation before the sentence was pronounced. Such intent appears inconsistent with a legislative policy favoring credit. ⁷

We point, also, to judicial dicta buttressing our conclusion that legislative intent is opposed to allowing credit. In Breeding v. Swenson, 240 Minn. 93, 60 N.W.2d 4, petitioner's probation was revoked and his original sentence reinstated. Dicta of the court considered the consequences of petitioner's revoked probation under the previous criminal code (240 Minn. 97, 60 N.W.2d 8):

'* * * (T)he court, as authorized by § 610.39, revoked the stay of execution of the sentence with the result that the original sentence was reinstated. In the exercise of its discretion a trial court may, at any time and without notice, constitutionally vacate a stay of execution and reinstate the original sentence * * *.'

Further support is found in State ex rel. Morris v. Tahash, 262 Minn. 562, 115 N.W.2d 676, which includes the following dicta (262 Minn. 566, 115 N.W.2d 679):

'* * * That a court may vacate a stay of execution and reinstate an original sentence at any time without notice is well established.' ⁸

2. We consider next petitioner's constitutional objections, primarily his claim of unequal protection of the laws.

Whether the protection of the laws is unequal, and hence unconstitutional, depends upon a finding that a legislative enactment operates in a different way upon those who belong to the same class. ⁹ We agree with petitioner that the legislature treats probationers and parolees differently in granting credit for time served on parole while denying it for probation. We are not unmindful of State ex rel. Lutz v. Rigg, 256 Minn. 241, 98 N.W.2d 243, which holds that, upon revocation of parole, the original sentence may be imposed and defendant shall receive no credit for time served on parole. However, Minn.St.1961, § 243.18, in force at the time, was neither raised nor considered in that case. That statute expressly provides that credit be given for good time, and we believe a policy is clearly implied that credit be given for all time on parole. ¹⁰ Furthermore, it seems anomalous to provide for good time earned while serving parole without considering that the time served is also earned and credited.

But, though credit is granted for parole yet denied for probation, there is no denial of equal protection because, in our view, parolees and probationers are not of the same class. While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The legislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant's integrity and future good behavior. Unlike parole, granted by an administrative agency,...