State ex rel. Alvarez v. Lotter, 78-386

• Decision Date: 31 May 1979
• Docket Number: No. 78-386,78-386
• Citation: 283 N.W.2d 408,91 Wis.2d 329
• Parties: STATE of Wisconsin ex rel. Angel ALVAREZ, Petitioner, v. Franklin LOTTER, Superintendent, Milwaukee County House of Correction, and Chase Riveland, Regional Chief, Bureau of Community Corrections, Department of Health and Social Services, State of Wisconsin, Respondents.
• Court: Wisconsin Court of Appeals

Page 408

283 N.W.2d 408

91 Wis.2d 329

STATE of Wisconsin ex rel. Angel ALVAREZ, Petitioner, v. Franklin LOTTER, Superintendent, Milwaukee County House of Correction, and Chase Riveland, Regional Chief, Bureau of Community Corrections, Department of Health and Social Services, State of Wisconsin, Respondents.

No. 78-386.

Court of Appeals of Wisconsin.

Submitted on Briefs May 23, 1979.

Opinion Released May 31, 1979.

Opinion Filed May 31, 1979.

Richard L. Cates, State Public Defender, and Mel S. Johnson, Asst. State Public Defender, for petitioner.

Bronson C. La Follette, Atty. Gen. and Pamela Magee-Heilprin, Asst. Atty. Gen., for respondents.

Before DECKER, C. J., CANNON, P. J., and MOSER, J.

PER CURIAM.

Angel Alvarez seeks review of the denial by the Milwaukee County circuit court of his petition for a writ for habeas corpus in which he sought release from custody and dismissal of probation revocation proceedings pending against him.

Alvarez was convicted of burglary on April 1, 1977, in Milwaukee County circuit court. He was sentenced to imprisonment for a term of five years. The sentence was stayed and he was placed on probation for a period of three years. While on probation, Alvarez requested a permit to travel to Florida. His request was granted by the Department of Health and Social Services, hereinafter the department.

In early October of 1977, Alvarez was arrested in Wisconsin on a Florida warrant for alleged criminal activity in Florida. On October 10, 1977, the department placed a probation hold on Alvarez at the Milwaukee County Jail. On October 12, 1977, a preliminary probation revocation hearing was held at the jail. The preliminary hearing magistrate found probable cause that Alvarez had participated in two shootings in Florida by providing transportation to and from the scene of the crimes and by possessing two firearms in violation of his probation agreement and the Federal Firearms Control Act.

Alvarez demanded a final revocation hearing, in lieu of waiving his right to the hearing. The department ordered him "held in custody, with a detainer to follow him to Lee County Jail, Lee County, Florida." It was the intent of the department to make a decision regarding revocation after resolution of the Florida matters. Alvarez waived extradition to Florida. He arrived in Florida shortly after the preliminary revocation hearing.

The proceedings in Florida culminated with Alvarez' conviction of crimes in that state. As a result of the convictions, he was placed on probation by a Florida court and was sentenced to approximately 355 days imprisonment. Credited against this sentence was his pretrial incarceration, so only 51 days remained to be served upon his sentencing. Following his service of the 51 days, he was immediately returned to Wisconsin for a final revocation hearing. He arrived in Wisconsin on or about August 29, 1978.

Alvarez brought this petition for relief on September 6, 1978, prior to his final revocation hearing, alleging that he had been denied due process because the department had not afforded him a final revocation hearing while he was in Florida. Alvarez contended that he was denied his due process right to a hearing within a reasonable time after being taken into custody on a probation hold.

The circuit court concluded that the department acted reasonably in waiting until the Florida proceedings were resolved, and that the delay was not occasioned by any malfeasance on the part of the department, but by the fact that Alvarez was awaiting trial 1,500 miles away.

The United States Supreme Court has held that an element of the fair process due a parolee facing revocation is that the hearing must be tendered within a reasonable time after the parolee is taken into custody. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The due process standards for parole revocation proceedings were made applicable to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and therefore apply to Alvarez.

In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court granted certiorari to decide whether a federal parolee imprisoned for a crime committed while on parole was constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant was issued and lodged with the institution where he was confined and serving intervening sentences, but was not served on him. Moody had requested that the United States Board of Parole execute the warrant but his request had been denied. Moody had then instituted a habeas corpus action in the district court, seeking dismissal of the parole violator warrant on the ground that he had been denied a prompt hearing at which the parole revocation issues could be aired. The district court had dismissed the petition and the Court of Appeals for the Tenth Circuit had affirmed.

Before the...